I 

112TH CONGRESS 

1ST SESSION H. R. 1789 

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 HOUSE OF REPRESENTATIVES 

MAY 5, 2011 

Mr. PAULSEN (for himself, Ms. SUTTON, Mr. LATOURETTE, and Mr. 

PASCRELL) introduced the following bill; which was 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. 


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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 ‘‘State and Local Law 

5 Enforcement Discipline, Accountability, and Due Process 

6 Act of 2011’’. 

7 SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND 

8 POLICY. 

9 (a) FINDINGS.—Congress finds that— 

10 (1) the rights of law enforcement officers to en11 gage in political activity or to refrain from engaging 

12 in political activity, except when on duty, or to run 

13 as candidates for public office, unless such service is 

14 found to be in conflict with their service as officers, 

15 are activities protected by the First Amendment of 

16 the United States Constitution, as applied to the 

17 States through the 14th Amendment of the United 

18 States Constitution, but these rights are often vio19 lated by the management of State and local law en20 forcement agencies; 

21 (2) a significant lack of due process rights of 

22 law enforcement officers during internal investiga23 tions and disciplinary proceedings has resulted in a 

24 loss of confidence in these processes by many law 

25 enforcement officers, including those unfairly tarVerDate Mar 15 2010 01:57 May 11, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1789.IH H1789

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1 geted for their labor organization activities or for 

2 their aggressive enforcement of the laws, demor3 alizing many rank and file officers in communities 

4 and States; 

5 (3) unfair treatment of officers has potentially 

6 serious long-term consequences for law enforcement 

7 by potentially deterring or otherwise preventing offi8 cers from carrying out their duties and responsibil9 ities effectively and fairly; 

10 (4) the lack of labor-management cooperation 

11 in disciplinary matters and either the perception or 

12 the actuality that officers are not treated fairly det13 rimentally impacts the recruitment of and retention 

14 of effective officers, as potential officers and experi15 enced officers seek other careers which has serious 

16 implications and repercussions for officer morale, 

17 public safety, and labor-management relations and 

18 strife and can affect interstate and intrastate com19 merce, interfering with the normal flow of com20 merce; 

21 (5) there are serious implications for the public 

22 safety of the citizens and residents of the United 

23 States which threatens the domestic tranquility of 

24 the United States because of a lack of statutory pro25 tections to ensure— 


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1 (A) the due process and political rights of 

2 law enforcement officers; 

3 (B) fair and thorough internal investiga4 tions and interrogations of and disciplinary pro5 ceedings against law enforcement officers; and 

6 (C) effective procedures for receipt, review, 

7 and investigation of complaints against officers, 

8 fair to both officers and complainants; and 

9 (6) resolving these disputes and problems and 

10 preventing the disruption of vital police services is 

11 essential to the well-being of the United States and 

12 the domestic tranquility of the Nation. 

13 (b) DECLARATION OF POLICY.—Congress declares 

14 that it is the purpose of this Act and the policy of the 

15 United States to— 

16 (1) protect the due process and political rights 

17 of State and local law enforcement officers and en18 sure equality and fairness of treatment among such 

19 officers; 

20 (2) provide continued police protection to the 

21 general public; 

22 (3) provide for the general welfare and ensure 

23 domestic tranquility; and 

24 (4) prevent any impediments to the free flow of 

25 commerce, under the rights guaranteed under the 


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1 United States Constitution and Congress authority 

2 thereunder. 

3 SEC. 3. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS 

4 OF OFFICERS. 

5 The Omnibus Crime Control and Safe Streets Act of 

6 1968 (42 U.S.C. 3781 et seq.) is amended— 

7 (1) by redesignating part JJ, as added by sec8 tion 952 of Public Law 110–315 (relating to Loan 

9 Repayment for Prosecutors and Public Defenders), 

10 as part LL, and moving such part so that such part 

11 follows part KK; 

12 (2) in part LL, as so redesignated and moved 

13 by paragraph (1), by redesignating section 3001 as 

14 section 3021; and 

15 (3) by adding at the end the following new part: 

16 ‘‘PART MM—DISCIPLINE, ACCOUNTABILITY, AND 

17 DUE PROCESS OF STATE AND LOCAL LAW 

18 ENFORCEMENT OFFICERS 

19 ‘‘SEC. 3031. DISCIPLINE, ACCOUNTABILITY, AND DUE PROC20 ESS OF STATE AND LOCAL LAW ENFORCE21 MENT OFFICERS. 

22 ‘‘(a) DEFINITIONS.—In this section: 

23 ‘‘(1) DISCIPLINARY ACTION.—The term ‘dis24 ciplinary action’ means any adverse personnel action, 

25 including suspension, reduction in pay, rank, or 


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1 other employment benefit, dismissal, involuntary 

2 transfer, reassignment, unreasonable denial of sec3 ondary employment, or similar punitive action taken 

4 against a law enforcement officer. 

5 ‘‘(2) DISCIPLINARY HEARING.—The term ‘dis6 ciplinary hearing’ means an administrative hearing 

7 initiated by a law enforcement agency against a law 

8 enforcement officer based on an alleged violation of 

9 law that, if proven, would subject the law enforce10 ment officer to disciplinary action. 

11 ‘‘(3) EMERGENCY SUSPENSION.—The term 

12 ‘emergency suspension’ means the temporary action 

13 by a law enforcement agency of relieving a law en14 forcement officer from the active performance of law 

15 enforcement duties without a reduction in pay or 

16 benefits when the law enforcement agency, or an of17 ficial within that agency, determines that there is 

18 probable cause, based upon the conduct of the law 

19 enforcement officer, to believe that the law enforce20 ment officer poses an immediate threat to the safety 

21 of that officer, other persons, or the property of 

22 other persons. 

23 ‘‘(4) INVESTIGATION.—The term ‘investiga24 tion’— 


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1 ‘‘(A) means an action taken to determine 

2 whether a law enforcement officer violated a 

3 law by a public agency or a person employed by 

4 a public agency, acting alone or in cooperation 

5 with or at the direction of another agency, or 

6 a division or unit within another agency, re7 gardless of a denial by such an agency that any 

8 such action is not an investigation; and 

9 ‘‘(B) includes— 

10 ‘‘(i) asking questions of any other law 

11 enforcement officer or non-law enforcement 

12 officer; 

13 ‘‘(ii) conducting observations; 

14 ‘‘(iii) reviewing and evaluating re15 ports, records, or other documents; and 

16 ‘‘(iv) examining physical evidence. 

17 ‘‘(5) LAW ENFORCEMENT OFFICER.—The terms 

18 ‘law enforcement officer’ and ‘officer’ have the 

19 meaning given the term ‘law enforcement officer’ in 

20 section 1204, except that such terms do not include 

21 a law enforcement officer employed by the United 

22 States, or any department, agency, or instrumen23 tality thereof. 

24 ‘‘(6) PERSONNEL RECORD.—The term ‘per25 sonnel record’ means any document, whether in writVerDate Mar 15 2010 01:57 May 11, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1789.IH H1789

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1 ten or electronic form and irrespective of location, 

2 that has been or may be used in determining the 

3 qualifications of a law enforcement officer for em4 ployment, promotion, transfer, additional compensa5 tion, termination, or any other disciplinary action. 

6 ‘‘(7) PUBLIC AGENCY AND LAW ENFORCEMENT

7 AGENCY.—The terms ‘public agency’ and ‘law en8 forcement agency’ have the meaning given the term 

9 ‘public agency’ in section 1204, except that such 

10 terms do not include the United States, or any de11 partment, agency, or instrumentality thereof. 

12 ‘‘(8) SUMMARY PUNISHMENT.—The term ‘sum13 mary punishment’ means punishment imposed for a 

14 violation of law— 

15 ‘‘(A) that does not result in any discipli16 nary action; or 

17 ‘‘(B) that has been negotiated and agreed 

18 upon by the law enforcement agency and the 

19 law enforcement officer, based upon a written 

20 waiver by the officer of the rights of that officer 

21 under subsection (i) and any other applicable 

22 law or constitutional provision, after consulta23 tion with the counsel or representative of that 

24 officer. 

25 ‘‘(b) APPLICABILITY.— 


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

2 due process rights, including procedures, that shall 

3 be afforded a law enforcement officer who is the 

4 subject of an investigation or disciplinary hearing. 

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

6 not apply in the case of— 

7 ‘‘(A) an investigation of specifically alleged 

8 conduct by a law enforcement officer that, if 

9 proven, would constitute a violation of a statute 

10 providing for criminal penalties; or 

11 ‘‘(B) a nondisciplinary action taken in 

12 good faith on the basis of the employment re13 lated performance of a law enforcement officer. 

14 ‘‘(c) POLITICAL ACTIVITY.— 

15 ‘‘(1) RIGHT TO ENGAGE OR NOT TO ENGAGE IN

16 POLITICAL ACTIVITY.—Except when on duty or act17 ing in an official capacity, a law enforcement officer 

18 shall not be prohibited from engaging in political ac19 tivity or be denied the right to refrain from engaging 

20 in political activity. 

21 ‘‘(2) RIGHT TO RUN FOR ELECTIVE OFFICE.— 

22 A law enforcement officer shall not be— 

23 ‘‘(A) prohibited from being a candidate for 

24 an elective office or from serving in such an 


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1 elective office, solely because of the status of 

2 the officer as a law enforcement officer; or 

3 ‘‘(B) required to resign or take an unpaid 

4 leave from employment with a law enforcement 

5 agency to be a candidate for an elective office 

6 or to serve in an elective office, unless such 

7 service is determined to be in conflict with or 

8 incompatible with service as a law enforcement 

9 officer. 

10 ‘‘(3) ADVERSE PERSONNEL ACTION.—An action 

11 by a public agency against a law enforcement officer, 

12 including requiring the officer to take unpaid leave 

13 from employment, in violation of this subsection 

14 shall be considered an adverse personnel action with15 in the meaning of subsection (a)(1). 

16 ‘‘(d) EFFECTIVE PROCEDURES FOR RECEIPT, RE17 VIEW, AND INVESTIGATION OF COMPLAINTS AGAINST

18 LAW ENFORCEMENT OFFICERS.— 

19 ‘‘(1) COMPLAINT PROCESS.—Not later than 1 

20 year after the effective date of this section, each law 

21 enforcement agency shall adopt and comply with a 

22 written complaint procedure that— 

23 ‘‘(A) authorizes persons from outside the 

24 law enforcement agency to submit written com25 plaints about a law enforcement officer to— 


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1 ‘‘(i) the law enforcement agency em2 ploying the law enforcement officer; or 

3 ‘‘(ii) any other law enforcement agen4 cy charged with investigating such com5 plaints; 

6 ‘‘(B) sets forth the procedures for the in7 vestigation and disposition of such complaints; 

8 ‘‘(C) provides for public access to required 

9 forms and other information concerning the 

10 submission and disposition of written com11 plaints; and 

12 ‘‘(D) requires notification to the complain13 ant in writing of the final disposition of the 

14 complaint and the reasons for such disposition. 

15 ‘‘(2) INITIATION OF AN INVESTIGATION.— 

16 ‘‘(A) IN GENERAL.—Except as provided in 

17 subparagraph (B), an investigation based on a 

18 complaint from outside the law enforcement 

19 agency shall commence not later than 15 days 

20 after the receipt of the complaint by— 

21 ‘‘(i) the law enforcement agency em22 ploying the law enforcement officer against 

23 whom the complaint has been made; or 


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1 ‘‘(ii) any other law enforcement agen2 cy charged with investigating such a com3 plaint. 

4 ‘‘(B) EXCEPTION.—Subparagraph (A) 

5 does not apply if— 

6 ‘‘(i) the law enforcement agency deter7 mines from the face of the complaint that 

8 each allegation does not constitute a viola9 tion of law; or 

10 ‘‘(ii) the complainant fails to comply 

11 substantially with the complaint procedure 

12 of the law enforcement agency established 

13 under this section. 

14 ‘‘(3) COMPLAINANT OR VICTIM CONFLICT OF

15 INTEREST.—The complainant or victim of the al16 leged violation of law giving rise to an investigation 

17 under this subsection may not conduct or supervise 

18 the investigation or serve as an investigator. 

19 ‘‘(e) NOTICE OF INVESTIGATION.— 

20 ‘‘(1) IN GENERAL.—Any law enforcement offi21 cer who is the subject of an investigation shall be 

22 notified of the investigation 24 hours before the 

23 commencement of questioning or to otherwise being 

24 required to provide information to an investigating 

25 agency. 


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1 ‘‘(2) CONTENTS OF NOTICE.—Notice given 

2 under paragraph (1) shall include— 

3 ‘‘(A) the nature and scope of the investiga4 tion; 

5 ‘‘(B) a description of any allegation con6 tained in a written complaint; 

7 ‘‘(C) a description of each violation of law 

8 alleged in the complaint for which suspicion ex9 ists that the officer may have engaged in con10 duct that may subject the officer to disciplinary 

11 action; and 

12 ‘‘(D) the name, rank, and command of the 

13 officer or any other individual who will be con14 ducting the investigation. 

15 ‘‘(f) RIGHTS OF LAW ENFORCEMENT OFFICERS

16 PRIOR TO AND DURING QUESTIONING INCIDENTAL TO AN

17 INVESTIGATION.—If a law enforcement officer is subjected 

18 to questioning incidental to an investigation that may re19 sult in disciplinary action against the officer, the following 

20 minimum safeguards shall apply: 

21 ‘‘(1) COUNSEL AND REPRESENTATION.— 

22 ‘‘(A) IN GENERAL.—Any law enforcement 

23 officer under investigation shall be entitled to 

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1 es, such as an employee representative, or both, 

2 immediately before and during the entire period 

3 of any questioning session, unless the officer 

4 consents in writing to being questioned outside 

5 the presence of counsel or representative. 

6 ‘‘(B) PRIVATE CONSULTATION.—During 

7 the course of any questioning session, the offi8 cer shall be afforded the opportunity to consult 

9 privately with counsel or a representative, if 

10 such consultation does not repeatedly and un11 necessarily disrupt the questioning period. 

12 ‘‘(C) UNAVAILABILITY OF COUNSEL.—If 

13 the counsel or representative of the law enforce14 ment officer is not available within 24 hours of 

15 the time set for the commencement of any ques16 tioning of that officer, the investigating law en17 forcement agency shall grant a reasonable ex18 tension of time for the law enforcement officer 

19 to obtain counsel or representation. 

20 ‘‘(2) REASONABLE HOURS AND TIME.—Any 

21 questioning of a law enforcement officer under inves22 tigation shall be conducted at a reasonable time 

23 when the officer is on duty, unless exigent cir24 cumstances compel more immediate questioning, or 

25 the officer agrees in writing to being questioned at 


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1 a different time, subject to the requirements of sub2 sections (e) and (f)(1). 

3 ‘‘(3) PLACE OF QUESTIONING.—Unless the offi4 cer consents in writing to being questioned else5 where, any questioning of a law enforcement officer 

6 under investigation shall take place— 

7 ‘‘(A) at the office of the individual con8 ducting the investigation on behalf of the law 

9 enforcement agency employing the officer under 

10 investigation; or 

11 ‘‘(B) the place at which the officer under 

12 investigation reports for duty. 

13 ‘‘(4) IDENTIFICATION OF QUESTIONER.—Before 

14 the commencement of any questioning, a law en15 forcement officer under investigation shall be in16 formed of— 

17 ‘‘(A) the name, rank, and command of the 

18 officer or other individual who will conduct the 

19 questioning; and 

20 ‘‘(B) the relationship between the indi21 vidual conducting the questioning and the law 

22 enforcement agency employing the officer under 

23 investigation. 

24 ‘‘(5) SINGLE QUESTIONER.—During any single 

25 period of questioning of a law enforcement officer 


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1 under investigation, each question shall be asked by 

2 or through 1 individual. 

3 ‘‘(6) REASONABLE TIME PERIOD.—Any ques4 tioning of a law enforcement officer under investiga5 tion shall be for a reasonable period of time and 

6 shall allow reasonable periods for the rest and per7 sonal necessities of the officer and the counsel or 

8 representative of the officer, if such person is 

9 present. 

10 ‘‘(7) NO THREATS, FALSE STATEMENTS, OR

11 PROMISES TO BE MADE.— 

12 ‘‘(A) IN GENERAL.—Except as provided in 

13 subparagraph (B), no threat against, false or 

14 misleading statement to, harassment of, or 

15 promise of reward to a law enforcement officer 

16 under investigation shall be made to induce the 

17 officer to answer any question, give any state18 ment, or otherwise provide information. 

19 ‘‘(B) EXCEPTION.—The law enforcement 

20 agency employing a law enforcement officer 

21 under investigation may require the officer to 

22 make a statement relating to the investigation 

23 by explicitly threatening disciplinary action, in24 cluding termination, only if— 


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1 ‘‘(i) the officer has received a written 

2 grant of use and derivative use immunity 

3 or transactional immunity by a person au4 thorized to grant such immunity; and 

5 ‘‘(ii) the statement given by the law 

6 enforcement officer under such an immu7 nity may not be used in any subsequent 

8 criminal proceeding against that officer. 

9 ‘‘(8) RECORDING.— 

10 ‘‘(A) IN GENERAL.—All questioning of a 

11 law enforcement officer under an investigation 

12 shall be recorded in full, in writing or by elec13 tronic device, and a copy of the transcript shall 

14 be provided to the officer under investigation 

15 before any subsequent period of questioning or 

16 the filing of any charge against that officer. 

17 ‘‘(B) SEPARATE RECORDING.—To ensure 

18 the accuracy of the recording, an officer may 

19 utilize a separate electronic recording device, 

20 and a copy of any such recording (or the tran21 script) shall be provided to the public agency 

22 conducting the questioning, if that agency so 

23 requests. 

24 ‘‘(9) USE OF HONESTY TESTING DEVICES PRO25 HIBITED.—No law enforcement officer under invesVerDate Mar 15 2010 01:57 May 11, 2011 Jkt 099200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H1789.IH H1789

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1 tigation may be compelled to submit to the use of 

2 a lie detector, as defined in section 2 of the Em3 ployee Polygraph Protection Act of 1988 (29 U.S.C. 

4 2001). 

5 ‘‘(g) NOTICE OF INVESTIGATIVE FINDINGS AND DIS6 CIPLINARY RECOMMENDATION AND OPPORTUNITY TO

7 SUBMIT A WRITTEN RESPONSE.— 

8 ‘‘(1) NOTICE.—Not later than 30 days after the 

9 conclusion of an investigation under this section, the 

10 person in charge of the investigation or the designee 

11 of that person shall notify the law enforcement offi12 cer who was the subject of the investigation, in writ13 ing, of the investigative findings and any rec14 ommendations for disciplinary action. 

15 ‘‘(2) OPPORTUNITY TO SUBMIT WRITTEN RE16 SPONSE.— 

17 ‘‘(A) IN GENERAL.—Not later than 30 

18 days after receipt of a notification under para19 graph (1), and before the filing of any charge 

20 seeking the discipline of such officer or the 

21 commencement of any disciplinary proceeding 

22 under subsection (h), the law enforcement offi23 cer who was the subject of the investigation 

24 may submit a written response to the findings 


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1 and recommendations included in the notifica2 tion. 

3 ‘‘(B) CONTENTS OF RESPONSE.—The re4 sponse submitted under subparagraph (A) may 

5 include references to additional documents, 

6 physical objects, witnesses, or any other infor7 mation that the law enforcement officer believes 

8 may provide exculpatory evidence. 

9 ‘‘(h) DISCIPLINARY HEARING.— 

10 ‘‘(1) NOTICE OF OPPORTUNITY FOR HEAR11 ING.—Except in a case of summary punishment or 

12 emergency suspension (subject to subsection (k)), 

13 before the imposition of any disciplinary action the 

14 law enforcement agency shall notify the officer that 

15 the officer is entitled to a due process hearing by an 

16 independent and impartial hearing officer or board. 

17 ‘‘(2) REQUIREMENT OF DETERMINATION OF

18 VIOLATION.—No disciplinary action may be taken 

19 against a law enforcement officer unless an inde20 pendent and impartial hearing officer or board de21 termines, after a hearing and in accordance with the 

22 requirements of this subsection, that the law en23 forcement officer committed a violation of law. 


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1 ‘‘(3) TIME LIMIT.—No disciplinary charge may 

2 be brought against a law enforcement officer un3 less— 

4 ‘‘(A) the charge is filed not later than the 

5 earlier of— 

6 ‘‘(i) 1 year after the date on which the 

7 law enforcement agency filing the charge 

8 had knowledge or reasonably should have 

9 had knowledge of an alleged violation of 

10 law; or 

11 ‘‘(ii) 90 days after the commencement 

12 of an investigation; or 

13 ‘‘(B) the requirements of this paragraph 

14 are waived in writing by the officer or the coun15 sel or representative of the officer. 

16 ‘‘(4) NOTICE OF HEARING.—Unless waived in 

17 writing by the officer or the counsel or representa18 tive of the officer, not later than 30 days after the 

19 filing of a disciplinary charge against a law enforce20 ment officer, the law enforcement agency filing the 

21 charge shall provide written notification to the law 

22 enforcement officer who is the subject of the charge, 

23 of— 

24 ‘‘(A) the date, time, and location of any 

25 disciplinary hearing, which shall be scheduled in 


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1 cooperation with the law enforcement officer, or 

2 the counsel or representative of the officer, and 

3 which shall take place not earlier than 30 days 

4 and not later than 60 days after notification of 

5 the hearing is given to the law enforcement offi6 cer under investigation; 

7 ‘‘(B) the name and mailing address of the 

8 independent and impartial hearing officer, or 

9 the names and mailing addresses of the inde10 pendent and impartial hearing board members; 

11 and 

12 ‘‘(C) the name, rank, command, and ad13 dress of the law enforcement officer prosecuting 

14 the matter for the law enforcement agency, or 

15 the name, position, and mailing address of the 

16 person prosecuting the matter for a public 

17 agency, if the prosecutor is not a law enforce18 ment officer. 

19 ‘‘(5) ACCESS TO DOCUMENTARY EVIDENCE AND

20 INVESTIGATIVE FILE.—Unless waived in writing by 

21 the law enforcement officer or the counsel or rep22 resentative of that officer, not later than 15 days be23 fore a disciplinary hearing described in paragraph 

24 (4)(A), the law enforcement officer shall be provided 

25 with— 


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1 ‘‘(A) a copy of the complete file of the pre2 disciplinary investigation; and 

3 ‘‘(B) access to and, if so requested, copies 

4 of all documents, including transcripts, records, 

5 written statements, written reports, analyses, 

6 and electronically recorded information that— 

7 ‘‘(i) contain exculpatory information; 

8 ‘‘(ii) are intended to support any dis9 ciplinary action; or 

10 ‘‘(iii) are to be introduced in the dis11 ciplinary hearing. 

12 ‘‘(6) EXAMINATION OF PHYSICAL EVIDENCE.— 

13 Unless waived in writing by the law enforcement of14 ficer or the counsel or representative of that offi15 cer— 

16 ‘‘(A) not later than 15 days before a dis17 ciplinary hearing, the prosecuting agency shall 

18 notify the law enforcement officer or the coun19 sel or representative of that officer of all phys20 ical, non-documentary evidence; and 

21 ‘‘(B) not later than 10 days before a dis22 ciplinary hearing, the prosecuting agency shall 

23 provide a reasonable date, time, place, and 

24 manner for the law enforcement officer or the 

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1 ment officer to examine the evidence described 

2 in subparagraph (A). 

3 ‘‘(7) IDENTIFICATION OF WITNESSES.—Unless 

4 waived in writing by the law enforcement officer or 

5 the counsel or representative of the officer, not later 

6 than 15 days before a disciplinary hearing, the pros7 ecuting agency shall notify the law enforcement offi8 cer or the counsel or representative of the officer, of 

9 the name and address of each witness for the law 

10 enforcement agency employing the law enforcement 

11 officer. 

12 ‘‘(8) REPRESENTATION.—During a disciplinary 

13 hearing, the law enforcement officer who is the sub14 ject of the hearing shall be entitled to due process, 

15 including— 

16 ‘‘(A) the right to be represented by counsel 

17 or a representative; 

18 ‘‘(B) the right to confront and examine all 

19 witnesses against the officer; and 

20 ‘‘(C) the right to call and examine wit21 nesses on behalf of the officer. 

22 ‘‘(9) HEARING BOARD AND PROCEDURE.— 

23 ‘‘(A) IN GENERAL.—A State or local gov24 ernment agency, other than the law enforceVerDate Mar 15 2010 01:57 May 11, 2011 Jkt 099200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H1789.IH H1789

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1 ment agency employing the officer who is sub2 ject of the disciplinary hearing, shall— 

3 ‘‘(i) determine the composition of an 

4 independent and impartial disciplinary 

5 hearing board; 

6 ‘‘(ii) appoint an independent and im7 partial hearing officer; and 

8 ‘‘(iii) establish such procedures as 

9 may be necessary to comply with this sec10 tion. 

11 ‘‘(B) PEER REPRESENTATION ON DISCIPLI12 NARY HEARING BOARD.—A disciplinary hearing 

13 board that includes employees of the law en14 forcement agency employing the law enforce15 ment officer who is the subject of the hearing, 

16 shall include not less than 1 law enforcement 

17 officer of equal or lesser rank to the officer who 

18 is the subject of the hearing. 

19 ‘‘(10) SUMMONSES AND SUBPOENAS.— 

20 ‘‘(A) IN GENERAL.—The disciplinary hear21 ing board or independent hearing officer— 

22 ‘‘(i) shall have the authority to issue 

23 summonses or subpoenas, on behalf of— 


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1 ‘‘(I) the law enforcement agency 

2 employing the officer who is the sub3 ject of the hearing; or 

4 ‘‘(II) the law enforcement officer 

5 who is the subject of the hearing; and 

6 ‘‘(ii) upon written request of either 

7 the agency or the officer, shall issue a 

8 summons or subpoena, as appropriate, to 

9 compel the appearance and testimony of a 

10 witness or the production of documentary 

11 evidence. 

12 ‘‘(B) EFFECT OF FAILURE TO COMPLY

13 WITH SUMMONS OR SUBPOENA.—With respect 

14 to any failure to comply with a summons or a 

15 subpoena issued under subparagraph (A)— 

16 ‘‘(i) the disciplinary hearing officer or 

17 board shall petition a court of competent 

18 jurisdiction to issue an order compelling 

19 compliance; and 

20 ‘‘(ii) subsequent failure to comply 

21 with such a court order issued pursuant to 

22 a petition under clause (i) shall— 

23 ‘‘(I) be subject to contempt of a 

24 court proceedings according to the 

25 laws of the jurisdiction within which 


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1 the disciplinary hearing is being con2 ducted; and 

3 ‘‘(II) result in the recess of the 

4 disciplinary hearing until the witness 

5 becomes available to testify and does 

6 testify or is held in contempt. 

7 ‘‘(11) CLOSED HEARING.—A disciplinary hear8 ing shall be closed to the public unless the law en9 forcement officer who is the subject of the hearing 

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

11 specified individuals or to the general public. 

12 ‘‘(12) RECORDING.—All aspects of a discipli13 nary hearing, including pre-hearing motions, shall be 

14 recorded by audio tape, video tape, or transcription. 

15 ‘‘(13) SEQUESTRATION OF WITNESSES.—Either 

16 side in a disciplinary hearing may move for and be 

17 entitled to sequestration of witnesses. 

18 ‘‘(14) TESTIMONY UNDER OATH.—The hearing 

19 officer or board shall administer an oath or affirma20 tion to each witness, who shall testify subject to the 

21 laws of perjury of the State in which the disciplinary 

22 hearing is being conducted. 

23 ‘‘(15) FINAL DECISION ON EACH CHARGE.— 

24 ‘‘(A) IN GENERAL.—At the conclusion of 

25 the presentation of all the evidence and after 


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1 oral or written argument, the hearing officer or 

2 board shall deliberate and render a written final 

3 decision on each charge. 

4 ‘‘(B) FINAL DECISION ISOLATED TO

5 CHARGE BROUGHT.—The hearing officer or 

6 board may not find that the law enforcement 

7 officer who is the subject of the hearing is liable 

8 for disciplinary action for any violation of law, 

9 as to which the officer was not charged. 

10 ‘‘(16) BURDEN OF PERSUASION AND STANDARD

11 OF PROOF.—The burden of persuasion or standard 

12 of proof of the prosecuting agency shall be— 

13 ‘‘(A) by clear and convincing evidence as to 

14 each charge alleging false statement or rep15 resentation, fraud, dishonesty, deceit, moral 

16 turpitude, or criminal behavior on the part of 

17 the law enforcement officer who is the subject 

18 of the charge; and 

19 ‘‘(B) by a preponderance of the evidence as 

20 to all other charges. 

21 ‘‘(17) FACTORS OF JUST CAUSE TO BE CONSID22 ERED BY THE HEARING OFFICER OR BOARD.—A law 

23 enforcement officer who is the subject of a discipli24 nary hearing shall not be found guilty of any charge 

25 or subjected to any disciplinary action unless the 


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1 disciplinary hearing board or independent hearing 

2 officer finds that— 

3 ‘‘(A) the officer who is the subject of the 

4 charge could reasonably be expected to have 

5 had knowledge of the probable consequences of 

6 the alleged conduct set forth in the charge 

7 against the officer; 

8 ‘‘(B) the rule, regulation, order, or proce9 dure that the officer who is the subject of the 

10 charge allegedly violated is reasonable; 

11 ‘‘(C) the charging party, before filing the 

12 charge, made a reasonable, fair, and objective 

13 effort to discover whether the officer did in fact 

14 violate the rule, regulation, order, or procedure 

15 as charged; 

16 ‘‘(D) the charging party did not conduct 

17 the investigation arbitrarily or unfairly, or in a 

18 discriminatory manner, against the officer who 

19 is the subject of the charge, and the charge was 

20 brought in good faith; and 

21 ‘‘(E) the proposed disciplinary action rea22 sonably relates to the seriousness of the alleged 

23 violation and to the record of service of the offi24 cer who is the subject of the charge. 


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1 ‘‘(18) NO COMMISSION OF A VIOLATION.—If the 

2 officer who is the subject of the disciplinary hearing 

3 is found not to have committed the alleged viola4 tion— 

5 ‘‘(A) the matter is concluded; 

6 ‘‘(B) no disciplinary action may be taken 

7 against the officer; 

8 ‘‘(C) the personnel file of that officer shall 

9 not contain any reference to the charge for 

10 which the officer was found not guilty; and 

11 ‘‘(D) any pay and benefits lost or deferred 

12 during the pendency of the disposition of the 

13 charge shall be restored to the officer as though 

14 no charge had ever been filed against the offi15 cer, including salary or regular pay, vacation, 

16 holidays, longevity pay, education incentive pay, 

17 shift differential, uniform allowance, lost over18 time, or other premium pay opportunities, and 

19 lost promotional opportunities. 

20 ‘‘(19) COMMISSION OF A VIOLATION.— 

21 ‘‘(A) IN GENERAL.—If the officer who is 

22 the subject of the charge is found to have com23 mitted the alleged violation, the hearing officer 

24 or board shall make a written recommendation 

25 of a penalty to the law enforcement agency emVerDate Mar 15 2010 01:57 May 11, 2011 Jkt 099200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H1789.IH H1789

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1 ploying the officer or any other governmental 

2 entity that has final disciplinary authority, as 

3 provided by applicable State or local law. 

4 ‘‘(B) PENALTY.—The employing agency or 

5 other governmental entity may not impose a 

6 penalty greater than the penalty recommended 

7 by the hearing officer or board. 

8 ‘‘(20) APPEAL.—Any officer who has been 

9 found to have committed an alleged violation may 

10 appeal from a final decision of a hearing officer or 

11 hearing board to a court of competent jurisdiction or 

12 to an independent neutral arbitrator to the extent 

13 available in any other administrative proceeding 

14 under applicable State or local law, or a collective 

15 bargaining agreement. 

16 ‘‘(i) WAIVER OF RIGHTS.— 

17 ‘‘(1) IN GENERAL.—An officer who is notified 

18 that the officer is under investigation or is the sub19 ject of a charge may, after such notification, waive 

20 any right or procedure guaranteed by this section. 

21 ‘‘(2) WRITTEN WAIVER.—A written waiver 

22 under this subsection shall be— 

23 ‘‘(A) in writing; and 

24 ‘‘(B) signed by— 


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1 ‘‘(i) the officer, who shall have con2 sulted with counsel or a representative be3 fore signing any such waiver; or 

4 ‘‘(ii) the counsel or representative of 

5 the officer, if expressly authorized by sub6 section (h). 

7 ‘‘(j) SUMMARY PUNISHMENT.—Nothing in this sec8 tion shall preclude a public agency from imposing sum9 mary punishment. 

10 ‘‘(k) EMERGENCY SUSPENSION.—Nothing in this 

11 section may be construed to preclude a law enforcement 

12 agency from imposing an emergency suspension on a law 

13 enforcement officer, except that any such suspension 

14 shall— 

15 ‘‘(1) be followed by a hearing in accordance 

16 with the requirements of subsection (h); and 

17 ‘‘(2) not deprive the affected officer of any pay 

18 or benefit. 

19 ‘‘(l) RETALIATION FOR EXERCISING RIGHTS.—There 

20 shall be no imposition of, or threat of, disciplinary action 

21 or other penalty against a law enforcement officer for the 

22 exercise of any right provided to the officer under this sec23 tion. 

24 ‘‘(m) OTHER REMEDIES NOT IMPAIRED.—Nothing 

25 in this section may be construed to impair any other right 


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1 or remedy that a law enforcement officer may have under 

2 any constitution, statute, ordinance, order, rule, regula3 tion, procedure, written policy, collective bargaining agree4 ment, or any other source. 

5 ‘‘(n) DECLARATORY OR INJUNCTIVE RELIEF.—A law 

6 enforcement officer who is aggrieved by a violation of, or 

7 is otherwise denied any right afforded by, the Constitution 

8 of the United States, a State constitution, this section, 

9 or any administrative rule or regulation promulgated pur10 suant thereto, may file suit in any Federal or State court 

11 of competent jurisdiction for declaratory or injunctive re12 lief to prohibit the law enforcement agency from violating 

13 or otherwise denying such right, and such court shall have 

14 jurisdiction, for cause shown, to restrain such a violation 

15 or denial. 

16 ‘‘(o) PROTECTION OF LAW ENFORCEMENT OFFICER

17 PERSONNEL FILES.— 

18 ‘‘(1) RESTRICTIONS ON ADVERSE MATERIAL

19 MAINTAINED IN OFFICERS’ PERSONNEL RECORDS.— 

20 ‘‘(A) IN GENERAL.—Unless the officer has 

21 had an opportunity to review and comment, in 

22 writing, on any adverse material included in a 

23 personnel record relating to the officer, no law 

24 enforcement agency or other governmental enti25 ty may— 


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1 ‘‘(i) include the adverse material in 

2 that personnel record; or 

3 ‘‘(ii) possess or maintain control over 

4 the adverse material in any form as a per5 sonnel record within the law enforcement 

6 agency or elsewhere in the control of the 

7 employing governmental entity. 

8 ‘‘(B) RESPONSIVE MATERIAL.—Any re9 sponsive material provided by an officer to ad10 verse material included in a personnel record 

11 pertaining to the officer shall be— 

12 ‘‘(i) attached to the adverse material; 

13 and 

14 ‘‘(ii) released to any person or entity 

15 to whom the adverse material is released in 

16 accordance with law and at the same time 

17 as the adverse material is released. 

18 ‘‘(2) RIGHT TO INSPECTION OF, AND RESTRIC19 TIONS ON ACCESS TO INFORMATION IN, THE OFFI20 CER’S OWN PERSONNEL RECORDS.— 

21 ‘‘(A) IN GENERAL.—Subject to subpara22 graph (B), a law enforcement officer shall have 

23 the right to inspect all of the personnel records 

24 of the officer not less than annually. 


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1 ‘‘(B) RESTRICTIONS.—A law enforcement 

2 officer shall not have access to information in 

3 the personnel records of the officer if the infor4 mation— 

5 ‘‘(i) relates to the investigation of al6 leged conduct that, if proven, would con7 stitute or have constituted a definite viola8 tion of a statute providing for criminal 

9 penalties, but as to which no formal charge 

10 was brought; 

11 ‘‘(ii) contains letters of reference for 

12 the officer; 

13 ‘‘(iii) contains any portion of a test 

14 document other than the results; 

15 ‘‘(iv) is of a personal nature about an16 other officer, and if disclosure of that in17 formation in non-redacted form would con18 stitute a clearly unwarranted intrusion into 

19 the privacy rights of that other officer; or 

20 ‘‘(v) is relevant to any pending claim 

21 brought by or on behalf of the officer 

22 against the employing agency of that offi23 cer that may be discovered in any judicial 

24 or administrative proceeding between the 

25 officer and the employer of that officer. 


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1 ‘‘(p) STATES’ RIGHTS.— 

2 ‘‘(1) IN GENERAL.—Nothing in this section 

3 may be construed— 

4 ‘‘(A) to preempt any State or local law, or 

5 any provision of a State or local law, in effect 

6 on the date of enactment of the State and Local 

7 Law Enforcement Discipline, Accountability, 

8 and Due Process Act of 2011, that confers a 

9 right or a protection that equals or exceeds the 

10 right or protection afforded by this section; or 

11 ‘‘(B) to prohibit the enactment of any 

12 State or local law that confers a right or protec13 tion that equals or exceeds a right or protection 

14 afforded by this section. 

15 ‘‘(2) STATE OR LOCAL LAWS PREEMPTED.—A 

16 State or local law, or any provision of a State or 

17 local law, that confers fewer rights or provides less 

18 protection for a law enforcement officer than any 

19 provision in this section shall be preempted by this 

20 section. 

21 ‘‘(q) COLLECTIVE BARGAINING AGREEMENTS.— 

22 Nothing in this section may be construed to— 

23 ‘‘(1) preempt any provision in a mutually 

24 agreed-upon collective bargaining agreement, in ef25 fect on the date of enactment of the State and Local 


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1 Law Enforcement Discipline, Accountability, and 

2 Due Process Act of 2011, that provides for substan3 tially the same or a greater right or protection af4 forded under this section; or 

5 ‘‘(2) prohibit the negotiation of any additional 

6 right or protection for an officer who is subject to 

7 any collective bargaining agreement.’’. 

8 SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE 

9 AND LOCAL CRIMINAL JUSTICE AGENCIES. 

10 Nothing in this Act shall be construed to authorize 

11 any department, agency, officer, or employee of the United 

12 States to exercise any direction, supervision, or control of 

13 any police force or any criminal justice agency of any 

14 State or any political subdivision thereof. 

15 SEC. 5. EFFECTIVE DATE. 

16 The amendments made by this Act shall take effect 

17 with respect to each State on the earlier of— 

18 (1) 2 years after the date of enactment of this 

19 Act; or 

20 (2) the conclusion of the second legislative ses21 sion of the State that begins on or after the date of 

22 enactment of this Act. 

Æ 


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