II

106TH CONGRESS

2D SESSION S. 2256

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

MARCH 21, 2000

Mr. BIDEN (for himself and Mr. MCCONNELL) 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.
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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 2000’’.

7 SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND

8 POLICY.

9 (a) FINDINGS.—Congress finds the following:

10 (1) The rights of law enforcement officers to

11 engage in political activity or to refrain from engag12 ing in such 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, as

16 applied to the States through the 14th amendment.

17 Unfortunately, these rights are often violated by the

18 management of State and local law enforcement

19 agencies.

20 (2) A significant lack of due process rights of

21 law enforcement officers during internal investiga22 tions and disciplinary proceedings has resulted in a

23 loss of confidence in these processes by many law

24 enforcement officers, including those unfairly tar25 geted for their labor organization activities or for
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1 their aggressive enforcement of the laws, demor2 alizing many rank and file officers in communities

3 and States. In addition, unfair treatment of officers

4 has potentially serious long-term consequences for

5 law enforcement by potentially deterring or other6 wise preventing officers from carrying out their du7 ties and responsibilities effectively and fairly. Also,

8 the lack of labor-management cooperation in discipli9 nary matters and either the perception or the actu10 ality (or both) that officers are not treated fairly

11 detrimentally impacts the recruitment of and reten12 tion of effective officers, as potential officers and ex13 perienced officers seek other careers. This has seri14 ous implications and repercussions for officer mo15 rale, public safety, and labor-management relations

16 and strife and can therefore affect interstate and

17 intrastate commerce, interfering with the normal

18 flow of commerce.

19 (3)(A) A lack of statutory protections to

20 ensure—

21 (i) the due process and political rights of

22 law enforcement officers;

23 (ii) fair and thorough internal investiga24 tions and interrogations of and disciplinary pro25 ceedings against law enforcement officers; and
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1 (iii) effective procedures for receipt, review,

2 and investigation of complaints against officers,

3 fair to both officers and complainants;

4 has serious implications for the public safety of the

5 citizens and residents of the United States and thus

6 threatens the domestic tranquility of the United

7 States.

8 (B) Resolving such disputes and problems and

9 preventing the disruption of vital police services is

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

11 the domestic tranquility of the Nation.

12 (b) DECLARATION OF POLICY.—Congress declares

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

14 United States—

15 (1) to protect the due process and political

16 rights of State and local law enforcement officers

17 and to ensure equality and fairness of treatment

18 among such officers;

19 (2) to provide continued police protection to the

20 general public;

21 (3) to provide for the general welfare and en22 sure domestic tranquility; and

23 (4) to prevent any impediments to the free flow

24 of commerce, pursuant to the rights guaranteed
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1 under the Constitution and Congress’ authority

2 thereunder.

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

4 OF OFFICERS.

5 Part H of title I of the Omnibus Crime Control and

6 Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.) is

7 amended by adding at the end the following:

8 ‘‘SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROC9 ESS OF STATE AND LOCAL LAW ENFORCE10 MENT OFFICERS.

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

12 ‘‘(1) DISCIPLINARY ACTION.—The term ‘dis13 ciplinary action’ means any adverse personnel action,

14 including suspension, reduction in pay, rank, or

15 other employment benefit, dismissal, transfer, reas16 signment, unreasonable denial of secondary employ17 ment, or similar punitive action taken against a law

18 enforcement officer.

19 ‘‘(2) DISCIPLINARY HEARING.—The term ‘dis20 ciplinary hearing’ means an administrative hearing

21 initiated by a law enforcement agency against a law

22 enforcement officer, based on an alleged violation of

23 law, that, if proven, would subject the law enforce24 ment officer to disciplinary action.
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1 ‘‘(3) EMERGENCY SUSPENSION.—The term

2 ‘emergency suspension’ means the temporary action

3 by a law enforcement agency of relieving a law en4 forcement officer from the active performance of law

5 enforcement duties without reduction in pay or bene6 fits when the law enforcement agency, or an official

7 within that agency, determines that there is probable

8 cause, based upon the conduct of the law enforce9 ment officer, to believe that the law enforcement of10 ficer poses an immediate threat to the safety of the

11 officer or others or the property of others.

12 ‘‘(4) INVESTIGATION.—The term

13 ‘investigation’—

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

15 whether a law enforcement officer has engaged

16 in, is engaging in, or will engage in, a violation

17 of law—

18 ‘‘(i) by a public agency or a person

19 employed by a public agency, acting alone

20 or in cooperation with or at the direction

21 of another agency, or a division or unit

22 within another agency, irrespective of a de23 nial by such an agency that any such ac24 tion is not an investigation; and

25 ‘‘(B) includes—
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1 ‘‘(i) asking questions of any other law

2 enforcement officer or non-law enforcement

3 officer;

4 ‘‘(ii) conducting observations by what5 ever means;

6 ‘‘(iii) reviewing and evaluating re7 ports, records, or other documents; and

8 ‘‘(iv) examining physical evidence.

9 ‘‘(5) LAW.—The term ‘law’ means any statute,

10 ordinance, rule, regulation, procedure, policy, court

11 order, or written order.

12 ‘‘(6) LAW ENFORCEMENT OFFICER.—The term

13 ‘law enforcement officer’ has the same meaning

14 given that term in section 1204, except the term

15 does not include a law enforcement officer employed

16 by the United States, or any department, agency, or

17 instrumentality thereof.

18 ‘‘(7) PERSONNEL RECORDS.—The term ‘per19 sonnel records’ means any document, whether in

20 written or electronic form and irrespective of loca21 tion, that has been or may be used in determining

22 a law enforcement officer’s qualifications for employ23 ment, promotion, transfer, additional compensation,

24 termination or other any disciplinary action.
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1 ‘‘(8) PUBLIC AGENCY AND LAW ENFORCEMENT

2 AGENCY.—The terms ‘public agency’ and ‘law en3 forcement agency’ each have the same meaning

4 given the term ‘public agency’ in section 1204, ex5 cept the terms do not include the United States, or

6 any department, agency, or instrumentality thereof.

7 ‘‘(9) SUMMARY PUNISHMENT.—The term ‘sum8 mary punishment’ means punishment imposed—

9 ‘‘(A) for a violation of law that does not

10 result in any disciplinary action; or

11 ‘‘(B) for a violation of law that has been

12 negotiated and agreed upon by the law enforce13 ment agency and the law enforcement officer,

14 based upon a written waiver by the officer of

15 the officer’s rights under subsection (i) and any

16 other applicable law or constitutional provision,

17 after consultation with the officer’s counsel or

18 representative.

19 ‘‘(10) VIOLATION OF LAW.—The term ‘violation

20 of law’ means a violation of a law.

21 ‘‘(b) APPLICABILITY.—

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

23 due process rights, including procedures, that shall

24 be afforded a law enforcement officer who is the

25 subject of an investigation or disciplinary hearing.
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1 ‘‘(2) NONAPPLICABILITY.—This section does

2 not apply in the case of—

3 ‘‘(A) an investigation of specifically alleged

4 conduct by a law enforcement officer that, if

5 proven, would constitute a definite violation of

6 a statute providing for criminal penalties; or

7 ‘‘(B) a nondisciplinary action taken in

8 good faith on the basis of a law enforcement of9 ficer’s employment-related performance.

10 ‘‘(c) POLITICAL ACTIVITY.—

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

12 POLITICAL ACTIVITY.—Except when on duty or act13 ing in an official capacity, a law enforcement officer

14 shall not be prohibited from engaging in political ac15 tivity or be denied the right to refrain from engaging

16 in such activity.

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

18 A law enforcement officer shall not be—

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

20 an elective office or from serving in such an

21 elective office, solely because of the law enforce22 ment officer’s status as a law enforcement offi23 cer; or

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

25 leave from employment with a law enforcement
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1 agency to be a candidate for an elective office

2 or to serve in an elective office, unless such

3 service is determined to be conflict with or in4 compatible with service as a law enforcement

5 officer.

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

7 by a public agency against a law enforcement officer,

8 including requiring the officer to take unpaid leave

9 from employment, in violation of this subsection

10 shall be considered an adverse personnel action with11 in the meaning of subsection (a)(1).

12 ‘‘(d) EFFECTIVE PROCEDURES FOR RECEIPT, RE13 VIEW, AND INVESTIGATION OF COMPLAINTS AGAINST

14 LAW ENFORCEMENT OFFICERS.—

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

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

17 enforcement agency shall adopt and thereafter com18 ply with a written complaint procedure that—

19 ‘‘(A) authorizes persons from outside the

20 law enforcement agency to submit written com21 plaints about a law enforcement officer to the

22 law enforcement agency employing the law en23 forcement officer, or to any other law enforce24 ment agency charged with investigating such

25 complaints;
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1 ‘‘(B) sets forth the procedures for the in2 vestigation and disposition of such complaints;

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

4 forms and other information concerning the

5 submission and disposition of written com6 plaints; and

7 ‘‘(D) requires notification to the complain8 ant in writing of the final disposition of the

9 complaint and the reasons for such disposition.

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

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

12 subparagraph (B), an investigation based on a

13 complaint from outside the law enforcement

14 agency shall commence not later than 15 days

15 after the receipt of the complaint by—

16 ‘‘(i) the law enforcement agency em17 ploying the law enforcement officer against

18 whom the complaint has been made; or

19 ‘‘(ii) any other law enforcement agen20 cy charged with investigating such a com21 plaint.

22 ‘‘(B) EXCEPTION.—Subparagraph (A)

23 does not apply if—

24 ‘‘(i) the law enforcement agency at

25 issue determines from the face of the com-
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1 plaint that the allegation or allegations,

2 even if true, would not constitute a viola3 tion of law; or

4 ‘‘(ii) the complainant fails to comply

5 substantially with the law enforcement

6 agency’s complaint procedure established

7 under this section.

8 ‘‘(3) COMPLAINANT OR VICTIM CONFLICT OF

9 INTEREST.—The complainant or victim of the al10 leged violation of law giving rise to an investigation

11 under this subsection may not conduct or supervise

12 the investigation or serve as an investigator.

13 ‘‘(e) NOTICE OF INVESTIGATION.—Any law enforce14 ment officer who is the subject of an investigation shall

15 be notified of the investigation 24 hours prior to the com16 mencement of questioning or to otherwise being required

17 to provide information to an investigating agency. Such

18 notice shall include—

19 ‘‘(1) the nature and scope of the investigation;

20 ‘‘(2) a description of any allegation contained in

21 a written complaint;

22 ‘‘(3) a description of each violation of law al23 leged in the complaint for which suspicion exists

24 that the officer may have engaged in conduct that

25 may subject the officer to disciplinary action; and
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1 ‘‘(4) the name, rank, and command of the offi2 cer or any other individual who will be conducting

3 the investigation.

4 ‘‘(f) RIGHTS OF LAW ENFORCEMENT OFFICERS

5 PRIOR TO AND DURING QUESTIONING INCIDENTAL TO AN

6 INVESTIGATION.—If a law enforcement officer is subjected

7 to questioning incidental to an investigation that may re8 sult in disciplinary action against the officer, the following

9 minimum safeguards shall apply:

10 ‘‘(1) COUNSEL AND REPRESENTATION.—

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

12 officer under investigation shall be entitled to

13 effective counsel by an attorney or representa14 tion by any other person of the officer’s choice,

15 such as an employee representative, or both,

16 immediately prior to and during the entire pe17 riod of any questioning session, unless the offi18 cer consents in writing to being questioned out19 side the presence of counsel or representative.

20 ‘‘(B) PRIVATE CONSULTATION.—During

21 the course of any questioning session, the offi22 cer shall be afforded the opportunity to consult

23 privately with counsel or representative, if such

24 consultation does not repeatedly and unneces25 sarily disrupt the questioning period.
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1 ‘‘(C) UNAVAILABILITY OF COUNSEL.—If

2 the law enforcement officer’s counsel or rep3 resentative is not available within 24 hours of

4 the time set for the commencement of any ques5 tioning of the officer, the investigating law en6 forcement agency shall grant a reasonable ex7 tension of time for the law enforcement officer

8 to obtain counsel or representation.

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

10 questioning of a law enforcement officer under inves11 tigation shall be conducted at a reasonable time

12 when the officer is on duty, unless exigent cir13 cumstances compel more immediate questioning or

14 the officer agrees in writing to being questioned at

15 a different time, subject to the requirements of sub16 sections (e) and (f)(1).

17 ‘‘(3) PLACE OF QUESTIONING.—Unless the offi18 cer consents in writing to being questioned else19 where, any questioning of a law enforcement officer

20 under investigation shall take place—

21 ‘‘(A) at the office of the individual or indi22 viduals conducting the investigation on behalf

23 of the law enforcement agency employing the

24 officer under investigation; or
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1 ‘‘(B) the place at which the officer under

2 investigation reports for duty.

3 ‘‘(4) IDENTIFICATION OF QUESTIONER.—Prior

4 to the commencement of any questioning, a law en5 forcement officer under investigation shall be in6 formed of—

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

8 officer or other individual who will conduct the

9 questioning; and

10 ‘‘(B) the relationship between the indi11 vidual conducting the questioning and the law

12 enforcement agency employing the officer under

13 investigation.

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

15 period of questioning of a law enforcement officer

16 under investigation, each question shall be asked by

17 or through 1 individual.

18 ‘‘(6) REASONABLE TIME PERIOD.—Any ques19 tioning of a law enforcement officer under investiga20 tion shall be for a reasonable period of time and

21 shall allow reasonable periods for the rest and per22 sonal necessities of the officer and the officer’s coun23 sel or representative, if such person is present.

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

25 PROMISES TO BE MADE.—
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1 ‘‘(A) IN GENERAL.—Except as provided in

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

3 misleading statement to, harassment of, or

4 promise of reward to a law enforcement officer

5 under investigation shall be made to induce the

6 officer to answer any question, give any state7 ment, or otherwise provide information.

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

9 agency employing a law enforcement officer

10 under investigation may require the officer to

11 make a statement relating to the investigation

12 by explicitly threatening disciplinary action, in13 cluding termination, only if—

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

15 grant of use and derivative use immunity

16 or transactional immunity by a person au17 thorized to grant such immunity; and

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

19 enforcement officer under such an immu20 nity may not be used in any subsequent

21 criminal proceeding against that officer.

22 ‘‘(8) RECORDING.—All questioning of a law en23 forcement officer under an investigation shall be re24 corded in full, in writing or by electronic device, and

25 a copy of a transcript thereof shall be provided to
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1 the officer under investigation prior to any subse2 quent period of questioning or the filing of any

3 charge against the officer who is the subject of the

4 investigation. To ensure the accuracy of the record5 ing, an officer may utilize a separate electronic re6 cording device, and a copy of any such recording (or

7 a transcript thereof) shall be provided to the public

8 agency conducting the questioning, if it so requests.

9 ‘‘(9) USE OF HONESTY TESTING DEVICES PRO10 HIBITED.—No law enforcement officer under inves11 tigation may be compelled to submit to the use of

12 a lie detector, as defined in section 2 of the Em13 ployee Polygraph Protection Act of 1988 (29 U.S.C.

14 2001).

15 ‘‘(g) NOTICE OF INVESTIGATIVE FINDINGS AND DIS16 CIPLINARY RECOMMENDATION AND OPPORTUNITY TO

17 SUBMIT A WRITTEN RESPONSE.—

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

19 conclusion of an investigation under this section, the

20 person in charge of the investigation or that person’s

21 designee shall notify the law enforcement officer who

22 was the subject of the investigation in writing of the

23 investigative findings and any recommendations for

24 disciplinary action.
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1 ‘‘(2) OPPORTUNITY TO SUBMIT WRITTEN RE2 SPONSE.—Not later than 30 days after receipt of a

3 notification under paragraph (1) and prior to the fil4 ing of any charge seeking the discipline of such offi5 cer or the commencement of any disciplinary pro6 ceeding under subsection (h), the law enforcement

7 officer who was the subject of the investigation may

8 submit a written response to the findings and rec9 ommendations included the notification. Such re10 sponse may also include references to additional doc11 uments, physical objects, witnesses, or any other in12 formation that the law enforcement officer believes

13 may provide exculpatory evidence.

14 ‘‘(h) DISCIPLINARY HEARING.—

15 ‘‘(1) NOTICE OF OPPORTUNITY FOR HEAR16 ING.—Except in a case of summary punishment or

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

18 prior to the imposition of any disciplinary action the

19 law enforcement agency shall notify the officer that

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

21 independent and impartial hearing officer or board.

22 ‘‘(2) REQUIREMENT OF DETERMINATION OF

23 VIOLATION.—No disciplinary action may be taken

24 against a law enforcement officer unless an inde25 pendent and impartial hearing officer or board de-
19

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1 termines, after a hearing and in accordance with the

2 requirements set forth in this subsection, that the

3 enforcement officer committed a violation of law.

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

5 be brought against a law enforcement officer,

6 unless—

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

8 earlier of—

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

10 law enforcement agency filing the charge

11 has knowledge or reasonably should have

12 had knowledge of an alleged violation of

13 law; or

14 ‘‘(ii) 90 days after the commencement

15 of an investigation; or

16 ‘‘(B) the requirements of this paragraph

17 are waived in writing by the officer or the offi18 cer’s counsel or representative.

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

20 writing by the officer or the officer’s counsel or rep21 resentative, not later than 30 days after the filing of

22 a disciplinary charge against a law enforcement offi23 cer, the law enforcement agency filing the charge

24 shall provide written notification to the law enforce25 ment officer who is the subject of the charge, of—
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1 ‘‘(A) the date, time, and location of any

2 disciplinary hearing, which shall be scheduled in

3 cooperation with the law enforcement officer, or

4 the law enforcement officer’s counsel or rep5 resentative, and which shall take place not ear6 lier than 30 days and not later than 60 days

7 after notification of hearing to the law enforce8 ment officer under investigation;

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

10 independent and impartial hearing officer or the

11 names and mailing addresses of the inde12 pendent and impartial hearing board members;

13 and

14 ‘‘(C) the name, rank, command, and ad15 dress of the law enforcement officer prosecuting

16 the matter for the law enforcement agency, or

17 the name, position, and mailing address of the

18 person prosecuting the matter for a public

19 agency, if not a law enforcement officer.

20 ‘‘(5) ACCESS TO DOCUMENTARY EVIDENCE AND

21 INVESTIGATIVE FILE.—Unless waived in writing by

22 the law enforcement officer or the officer’s counsel

23 or representative, not later than 15 days prior to a

24 disciplinary hearing described in paragraph (4)(A),

25 the law enforcement officer shall be provided 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 officer’s counsel or representative—

15 ‘‘(A) not later than 15 days prior to a dis16 ciplinary hearing, the prosecuting agency shall

17 notify the law enforcement officer or the offi18 cer’s counsel or representative of all physical,

19 non-documentary evidence; and

20 ‘‘(B) not later than 10 days prior to a dis21 ciplinary hearing, the prosecuting agency shall

22 provide reasonable a date, time, place, and

23 manner for the law enforcement officer or the

24 law enforcement officer’s counsel or representa-
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1 tive to examine the evidence described in sub2 paragraph (A).

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

4 waived in writing by the law enforcement officer or

5 the officer’s counsel or representative, not later than

6 15 days prior to a disciplinary hearing, the pros7 ecuting agency shall notify the law enforcement offi8 cer or the officer’s counsel or representative, of the

9 name and address of each witness for the law en10 forcement agency employing the law enforcement of11 ficer.

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 the officer’s behalf.

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

23 ‘‘(A) IN GENERAL.—A State or local gov24 ernment agency, other than the law enforce-
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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 be subject

23 to contempt of a court proceedings accord24 ing to the laws of the jurisdiction within

25 which the disciplinary hearing is being con-
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1 ducted, and shall result in the recess of the

2 disciplinary hearing until the witness be3 comes available to testify and does testify

4 or is held in contempt.

5 ‘‘(11) CLOSED HEARING.—A disciplinary hear6 ing shall be closed to the public unless the law en7 forcement officer who is the subject of the hearing

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

9 specified individuals or to the general public.

10 ‘‘(12) RECORDING.—All aspects of a discipli11 nary hearing, including pre-hearing motions, shall be

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

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

14 side in a disciplinary hearing may move for and be

15 entitled to sequestration of witnesses.

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

17 officer or board shall administer an oath or affirma18 tion to each witness, who shall testify subject to the

19 laws of perjury of the State in which the disciplinary

20 hearing is being conducted.

21 ‘‘(15) VERDICT ON EACH CHARGE.—

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

23 the presentation of all the evidence and after

24 oral or written argument, the hearing officer or
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1 board shall deliberate and render a written ver2 dict on each charge.

3 ‘‘(B) VERDICT ISOLATED TO CHARGE

4 BROUGHT.—The hearing officer or board may

5 not find that the law enforcement officer who is

6 the subject of the hearing is liable for discipli7 nary action for any violation of law, as to which

8 the officer was not charged.

9 ‘‘(16) BURDEN OF PERSUASION AND STANDARD

10 OF PROOF.—The prosecuting agency’s burden of

11 persuasion or standard of proof shall be by clear and

12 convincing evidence as to each charge alleging false

13 statement or representation, fraud, dishonesty, de14 ceit, moral turpitude, or criminal behavior on the

15 part of the law enforcement officer who is the sub16 ject of the charge and by a preponderance of the evi17 dence as to all other charge.

18 ‘‘(17) FACTORS OF ‘JUST CAUSE’ TO BE CON19 SIDERED BY THE HEARING OFFICER OR BOARD.—

20 No law enforcement officer who is the subject of a

21 disciplinary hearing shall be found guilty of any

22 charge or subjected to any disciplinary action unless

23 the disciplinary hearing board or independent hear24 ing officer finds that—
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1 ‘‘(A) the officer who is the subject of the

2 charge could reasonably be expected to have

3 had knowledge of the probable consequences of

4 the alleged conduct set forth in the charge

5 against the officer;

6 ‘‘(B) the rule, regulation, order, or proce7 dure that the officer who is the subject of the

8 charge allegedly violated is reasonable;

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

10 charge, made a reasonable, fair, and objective

11 effort to discover whether the officer did in fact

12 violate the rule, regulation, order, or procedure

13 as charged;

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

15 the investigation arbitrarily or unfairly, or in a

16 discriminatory manner, against the officer who

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

18 brought in good faith; and

19 ‘‘(E) the proposed disciplinary action rea20 sonably relates to the seriousness of the alleged

21 violation and to the record of service of the offi22 cer who is the subject of the charge.

23 ‘‘(18) FINDING OF NOT GUILTY.—If the officer

24 who is the subject of the disciplinary hearing is

25 found not guilty of the alleged violation—
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1 ‘‘(A) the matter is concluded;

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

3 against the officer;

4 ‘‘(C) the officer’s personnel file shall not

5 contain any reference to the charge for which

6 the officer was found not guilty; and

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

8 during the pendency of the disposition of the

9 charge shall be restored to the officer as though

10 no charge had ever been filed against the offi11 cer, including salary or regular pay, vacation,

12 holidays, longevity pay, education incentive pay,

13 shift differential, uniform allowance, lost over14 time, or other premium pay opportunities, and

15 lost promotional opportunities.

16 ‘‘(19) FINDING OF GUILTY.—If the officer who

17 is the subject of the charge is found guilty, the hear18 ing officer or board shall make a written rec19 ommendation of a penalty to the law enforcement

20 agency employing the officer or any other govern21 mental entity that has final disciplinary authority, as

22 provided by applicable State or local law. The em23 ploying agency or other governmental entity may not

24 impose a penalty greater than the penalty rec25 ommended by the hearing officer or board.
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1 ‘‘(20) APPEAL.—Any officer who has been

2 found guilty of a charge may appeal from a final de3 cision of a hearing officer or hearing board to a

4 court of competent jurisdiction or to an independent

5 neutral arbitrator to the extent available in any

6 other administrative proceeding under applicable

7 State or local law or collective bargaining agreement.

8 ‘‘(i) WAIVER OF RIGHTS.—An officer who is notified

9 that he or she is under investigation or is the subject of

10 a charge may, after such notification, waive any right or

11 procedure guaranteed by this section, which waiver shall

12 be—

13 ‘‘(1) in writing; and

14 ‘‘(2) signed by—

15 ‘‘(A) the officer, who shall have consulted

16 with counsel or a representative prior to signing

17 any such waiver; or

18 ‘‘(B) the officer’s counsel or representative,

19 if expressly authorized by subsection (h).

20 ‘‘(j) SUMMARY PUNISHMENT.—Nothing in this sec21 tion shall preclude a public agency from imposing sum22 mary punishment.

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

24 section may be construed to preclude a law enforcement

25 agency from imposing an emergency suspension on a law
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1 enforcement officer, except that any such suspension

2 shall—

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

4 with the requirements of subsection (h); and

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

6 or benefit.

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

8 shall be no imposition of or threat of disciplinary action

9 or other penalty against a law enforcement officer for the

10 exercise of any right provided to the officer under this sec11 tion.

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

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

14 or remedy that a law enforcement officer may have under

15 any constitution, statute, ordinance, order, rule, regula16 tion, procedure, written policy, collective bargaining agree17 ment, or other any other source.

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

19 enforcement officer who is aggrieved by a violation of or

20 is otherwise denied any right afforded by the Constitution

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

22 or by any administrative rule or regulation promulgated

23 pursuant thereto, may file suit in any Federal or State

24 court of competent jurisdiction for declaratory or injunc25 tive relief to prohibit the law enforcement agency from vio-
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1 lating or otherwise denying such right, and such court

2 shall have jurisdiction, for cause shown, to restrain such

3 a violation or denial.

4 ‘‘(o) PROTECTION OF LAW ENFORCEMENT OFFICER

5 PERSONNEL FILES.—

6 ‘‘(1) RESTRICTIONS ON ADVERSE MATERIAL

7 MAINTAINED IN OFFICERS’ PERSONNEL RECORDS.—

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

9 had an opportunity to review and comment in

10 writing on any adverse material included in a

11 personnel record pertaining to the officer, no

12 law enforcement agency or other governmental

13 entity may—

14 ‘‘(i) include the adverse material in

15 that personnel record; or

16 ‘‘(ii) possess or maintain control over

17 the adverse material in any form as a per18 sonnel record within the law enforcement

19 agency or elsewhere in the control of the

20 employing governmental entity.

21 ‘‘(B) RESPONSIVE MATERIAL.—Any re22 sponsive material provided by an officer to ad23 verse material included in a personnel record

24 pertaining to the officer shall be—
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1 ‘‘(i) attached to the adverse material;

2 and

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

4 to whom the adverse material is released

5 pursuant to law and at the same time as

6 the adverse material is released.

7 ‘‘(2) RIGHT TO INSPECTION OF, AND RESTRIC8 TIONS ON ACCESS TO INFORMATION IN, THE OFFI9 CER’S OWN PERSONNEL RECORDS.—

10 ‘‘(A) IN GENERAL.—Subject to subpara11 graph (B), a law enforcement officer shall have

12 the right to inspect all of the personnel records

13 of the officer not less than annually.

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

15 officer shall not have access to information in

16 the personnel records of the officer if the infor17 mation is—

18 ‘‘(i) records relating to the investiga19 tion of alleged conduct that, if proven,

20 would constitute or have constituted a defi21 nite violation of a statute providing for

22 criminal penalties, but as to which no for23 mal charge was brought;

24 ‘‘(ii) letters of reference for the offi25 cer;
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1 ‘‘(iii) any portion of a test document

2 other than the results;

3 ‘‘(iv) information of a personal nature

4 about another officer if disclosure of that

5 information in non-redacted form would

6 constitute a clearly unwarranted intrusion

7 into the privacy rights of that other officer;

8 or

9 ‘‘(v) records relevant to any pending

10 claim brought by or on behalf of the officer

11 against the officer’s employing agency that

12 may be discovered in any judicial or ad13 ministrative proceeding between the officer

14 and the officer’s employer.

15 ‘‘(p) STATES’ RIGHTS.—

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

17 may be construed—

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

19 any provision therein, in effect on the date of

20 enactment of the State and Local Law Enforce21 ment Discipline, Accountability, and Due Proc22 ess Act of 1999, that confers a right or a pro23 tection that equals or exceeds the right or pro24 tection afforded by this section; or
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1 ‘‘(B) to prohibit the enactment of any

2 State or local law that confers a right or protec3 tion that equals or exceeds a right or protection

4 afforded by this section.

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

6 State or local law, or any provision therein, that con7 fers fewer rights or provides less protection for law

8 enforcement officers than any provision in this sec9 tion shall be preempted by this section.

10 ‘‘(q) COLLECTIVE BARGAINING AGREEMENTS.—

11 Nothing in this section may be construed to—

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

13 agreed-upon collective bargaining agreement, in ef14 fect on the date of enactment of the State and Local

15 Law Enforcement Discipline, Accountability, and

16 Due Process Act of 1999, that provides for substan17 tially the same or a greater right or protection af18 forded under this section; or

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

20 right or protection for officers who are subject to

21 any collective bargaining agreement.’’.

22 SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE

23 AND LOCAL CRIMINAL JUSTICE AGENCIES.

24 Nothing in this Act shall be construed to authorize

25 any department, agency, officer, or employee of the United
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1 States to exercise any direction, supervision, or control of

2 any police force or any criminal justice agency of any

3 State or any political subdivision thereof.

4 SEC. 5. EFFECTIVE DATE.

5 The amendment made by this Act shall take effect

6 with respect to each State on the earlier of—

7 (1) 2 years after the date of enactment of this

8 Act; or

9 (2) the conclusion of the second legislative ses10 sion of the State that begins on or after the date of

11 enactment of this Act.

Æ