I

107TH CONGRESS

1ST SESSION H. R. 1626

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

APRIL 26, 2001

Mr. RAMSTAD (for himself and Mr. TOM DAVIS of Virginia) 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 2001’’.

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 tar-
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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 (i) the due process and political rights of

2 law enforcement officers;

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

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

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

7 3781 et seq.) is amended by adding at the end the fol8 lowing:

9 ‘‘SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROC10 ESS OF STATE AND LOCAL LAW ENFORCE11 MENT OFFICERS.

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

13 ‘‘(1) DISCIPLINARY ACTION.—The term ‘dis14 ciplinary action’ means any adverse personnel action,

15 including suspension, reduction in pay, rank, or

16 other employment benefit, dismissal, transfer, reas17 signment, unreasonable denial of secondary employ18 ment, or similar punitive action taken against a law

19 enforcement officer.

20 ‘‘(2) DISCIPLINARY HEARING.—The term ‘dis21 ciplinary hearing’ means an administrative hearing

22 initiated by a law enforcement agency against a law

23 enforcement officer, based on an alleged violation of

24 law, that, if proven, would subject the law enforce25 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 a reduction in pay or

6 benefits when the law enforcement agency, or an of7 ficial within that agency, determines that there is

8 probable cause, based upon the conduct of the law

9 enforcement officer, to believe that the law enforce10 ment officer poses an immediate threat to the safety

11 of that 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 violated a

16 law by a public agency or a person employed by

17 a public agency, acting alone or in cooperation

18 with or at the direction of another agency, or

19 a division or unit within another agency, re20 gardless of a denial by such an agency that any

21 such action is not an investigation; and

22 ‘‘(B) includes—

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

24 enforcement officer or non-law enforcement

25 officer;
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1 ‘‘(ii) conducting observations;

2 ‘‘(iii) reviewing and evaluating re3 ports, records, or other documents; and

4 ‘‘(iv) examining physical evidence.

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

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

7 meaning given the term ‘law enforcement officer’ in

8 section 1204, except the term does not include a law

9 enforcement officer employed by the United States,

10 or any department, agency, or instrumentality there11 of.

12 ‘‘(6) PERSONNEL RECORD.—The term ‘per13 sonnel record’ means any document, whether in writ14 ten or electronic form and irrespective of location,

15 that has been or may be used in determining the

16 qualifications of a law enforcement officer for em17 ployment, promotion, transfer, additional compensa18 tion, termination or any other disciplinary action.

19 ‘‘(7) PUBLIC AGENCY AND LAW ENFORCEMENT

20 AGENCY.—The terms ‘public agency’ and ‘law en21 forcement agency’ each have the meaning given the

22 term ‘public agency’ in section 1204, except the

23 terms do not include the United States, or any de24 partment, agency, or instrumentality thereof.
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1 ‘‘(8) SUMMARY PUNISHMENT.—The term ‘sum2 mary punishment’ means punishment imposed—

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

4 result in any disciplinary action; or

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

6 negotiated and agreed upon by the law enforce7 ment agency and the law enforcement officer,

8 based upon a written waiver by the officer of

9 the rights of that officer under subsection (i)

10 and any other applicable law or constitutional

11 provision, after consultation with the counsel or

12 representative of that officer.

13 ‘‘(b) APPLICABILITY.—

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

15 due process rights, including procedures, that shall

16 be afforded a law enforcement officer who is the

17 subject of an investigation or disciplinary hearing.

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

19 not apply in the case of—

20 ‘‘(A) an investigation of specifically alleged

21 conduct by a law enforcement officer that, if

22 proven, would constitute a violation of a statute

23 providing for criminal penalties; or
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1 ‘‘(B) a nondisciplinary action taken in

2 good faith on the basis of the employment re3 lated performance of a law enforcement officer.

4 ‘‘(c) POLITICAL ACTIVITY.—

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

6 POLITICAL ACTIVITY.—Except when on duty or act7 ing in an official capacity, a law enforcement officer

8 shall not be prohibited from engaging in political ac9 tivity or be denied the right to refrain from engaging

10 in political activity.

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

12 A law enforcement officer shall not be—

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

14 an elective office or from serving in such an

15 elective office, solely because of the status of

16 the officer as a law enforcement officer; or

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

18 leave from employment with a law enforcement

19 agency to be a candidate for an elective office

20 or to serve in an elective office, unless such

21 service is determined to be in conflict with or

22 incompatible with service as a law enforcement

23 officer.

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

25 by a public agency against a law enforcement officer,
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1 including requiring the officer to take unpaid leave

2 from employment, in violation of this subsection

3 shall be considered an adverse personnel action with4 in the meaning of subsection (a)(1).

5 ‘‘(d) EFFECTIVE PROCEDURES FOR RECEIPT, RE6 VIEW, AND INVESTIGATION OF COMPLAINTS AGAINST

7 LAW ENFORCEMENT OFFICERS.—

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

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

10 enforcement agency shall adopt and comply with a

11 written complaint procedure that—

12 ‘‘(A) authorizes persons from outside the

13 law enforcement agency to submit written com14 plaints about a law enforcement officer to—

15 ‘‘(i) the law enforcement agency em16 ploying the law enforcement officer; or

17 ‘‘(ii) any other law enforcement agen18 cy charged with investigating such com19 plaints;

20 ‘‘(B) sets forth the procedures for the in21 vestigation and disposition of such complaints;

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

23 forms and other information concerning the

24 submission and disposition of written com25 plaints; and
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1 ‘‘(D) requires notification to the complain2 ant in writing of the final disposition of the

3 complaint and the reasons for such disposition.

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

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

6 subparagraph (B), an investigation based on a

7 complaint from outside the law enforcement

8 agency shall commence not later than 15 days

9 after the receipt of the complaint by—

10 ‘‘(i) the law enforcement agency em11 ploying the law enforcement officer against

12 whom the complaint has been made; or

13 ‘‘(ii) any other law enforcement agen14 cy charged with investigating such a com15 plaint.

16 ‘‘(B) EXCEPTION.—Subparagraph (A)

17 does not apply if—

18 ‘‘(i) the law enforcement agency deter19 mines from the face of the complaint that

20 each allegation does not constitute a viola21 tion of law; or

22 ‘‘(ii) the complainant fails to comply

23 substantially with the complaint procedure

24 of the law enforcement agency established

25 under this section.
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1 ‘‘(3) COMPLAINANT OR VICTIM CONFLICT OF

2 INTEREST.—The complainant or victim of the al3 leged violation of law giving rise to an investigation

4 under this subsection may not conduct or supervise

5 the investigation or serve as an investigator.

6 ‘‘(e) NOTICE OF INVESTIGATION.—

7 ‘‘(1) IN GENERAL.—Any law enforcement offi8 cer who is the subject of an investigation shall be

9 notified of the investigation 24 hours before the

10 commencement of questioning or to otherwise being

11 required to provide information to an investigating

12 agency.

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

14 under paragraph (1) shall include—

15 ‘‘(A) the nature and scope of the investiga16 tion;

17 ‘‘(B) a description of any allegation con18 tained in a written complaint;

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

20 alleged in the complaint for which suspicion ex21 ists that the officer may have engaged in con22 duct that may subject the officer to disciplinary

23 action; and
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1 ‘‘(D) the name, rank, and command of the

2 officer or any other individual who will be con3 ducting 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 who the officer choos15 es, such as an employee representative, or both,

16 immediately before and during the entire period

17 of any questioning session, unless the officer

18 consents in writing to being questioned outside

19 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 a representative, if

24 such consultation does not repeatedly and un25 necessarily disrupt the questioning period.
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1 ‘‘(C) UNAVAILABILITY OF COUNSEL.—If

2 the counsel or representative of the law enforce3 ment officer is not available within 24 hours of

4 the time set for the commencement of any ques5 tioning of that 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 con22 ducting the investigation on behalf of the law

23 enforcement agency employing the officer under

24 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.—Before

4 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 counsel or

23 representative of the officer, if such person is

24 present.
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1 ‘‘(7) NO THREATS, FALSE STATEMENTS, OR

2 PROMISES TO BE MADE.—

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

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

5 misleading statement to, harassment of, or

6 promise of reward to a law enforcement officer

7 under investigation shall be made to induce the

8 officer to answer any question, give any state9 ment, or otherwise provide information.

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

11 agency employing a law enforcement officer

12 under investigation may require the officer to

13 make a statement relating to the investigation

14 by explicitly threatening disciplinary action, in15 cluding termination, only if—

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

17 grant of use and derivative use immunity

18 or transactional immunity by a person au19 thorized to grant such immunity; and

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

21 enforcement officer under such an immu22 nity may not be used in any subsequent

23 criminal proceeding against that officer.

24 ‘‘(8) RECORDING.—
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1 ‘‘(A) IN GENERAL.—All questioning of a

2 law enforcement officer under an investigation

3 shall be recorded in full, in writing or by elec4 tronic device, and a copy of the transcript shall

5 be provided to the officer under investigation

6 before any subsequent period of questioning or

7 the filing of any charge against that officer.

8 ‘‘(B) SEPARATE RECORDING.—To ensure

9 the accuracy of the recording, an officer may

10 utilize a separate electronic recording device,

11 and a copy of any such recording (or the tran12 script) shall be provided to the public agency

13 conducting the questioning, if that agency so

14 requests.

15 ‘‘(9) USE OF HONESTY TESTING DEVICES PRO16 HIBITED.—No law enforcement officer under inves17 tigation may be compelled to submit to the use of

18 a lie detector, as defined in section 2 of the Em19 ployee Polygraph Protection Act of 1988 (29 U.S.C.

20 2001).

21 ‘‘(g) NOTICE OF INVESTIGATIVE FINDINGS AND DIS22 CIPLINARY RECOMMENDATION AND OPPORTUNITY TO

23 SUBMIT A WRITTEN RESPONSE.—

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

25 conclusion of an investigation under this section, the
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1 person in charge of the investigation or the designee

2 of that person shall notify the law enforcement offi3 cer who was the subject of the investigation, in writ4 ing, of the investigative findings and any rec5 ommendations for disciplinary action.

6 ‘‘(2) OPPORTUNITY TO SUBMIT WRITTEN RE7 SPONSE.—

8 ‘‘(A) IN GENERAL.—Not later than 30

9 days after receipt of a notification under para10 graph (1), and before the filing of any charge

11 seeking the discipline of such officer or the

12 commencement of any disciplinary proceeding

13 under subsection (h), the law enforcement offi14 cer who was the subject of the investigation

15 may submit a written response to the findings

16 and recommendations included in the notifica17 tion.

18 ‘‘(B) CONTENTS OF RESPONSE.—The re19 sponse submitted under subparagraph (A) may

20 include references to additional documents,

21 physical objects, witnesses, or any other infor22 mation that the law enforcement officer believes

23 may provide exculpatory evidence.

24 ‘‘(h) DISCIPLINARY HEARING.—
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1 ‘‘(1) NOTICE OF OPPORTUNITY FOR HEAR2 ING.—Except in a case of summary punishment or

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

4 before the imposition of any disciplinary action the

5 law enforcement agency shall notify the officer that

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

7 independent and impartial hearing officer or board.

8 ‘‘(2) REQUIREMENT OF DETERMINATION OF

9 VIOLATION.—No disciplinary action may be taken

10 against a law enforcement officer unless an inde11 pendent and impartial hearing officer or board de12 termines, after a hearing and in accordance with the

13 requirements of this subsection, that the law en14 forcement officer committed a violation of law.

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

16 be brought against a law enforcement officer

17 unless—

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

19 earlier of—

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

21 law enforcement agency filing the charge

22 had knowledge or reasonably should have

23 had knowledge of an alleged violation of

24 law; or
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1 ‘‘(ii) 90 days after the commencement

2 of an investigation; or

3 ‘‘(B) the requirements of this paragraph

4 are waived in writing by the officer or the coun5 sel or representative of the officer.

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

7 writing by the officer or the counsel or representa8 tive of the officer, not later than 30 days after the

9 filing of a disciplinary charge against a law enforce10 ment officer, the law enforcement agency filing the

11 charge shall provide written notification to the law

12 enforcement officer who is the subject of the charge,

13 of—

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

15 disciplinary hearing, which shall be scheduled in

16 cooperation with the law enforcement officer, or

17 the counsel or representative of the officer, and

18 which shall take place not earlier than 30 days

19 and not later than 60 days after notification of

20 the hearing is given to the law enforcement offi21 cer under investigation;

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

23 independent and impartial hearing officer, or

24 the names and mailing addresses of the inde-
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1 pendent and impartial hearing board members;

2 and

3 ‘‘(C) the name, rank, command, and ad4 dress of the law enforcement officer prosecuting

5 the matter for the law enforcement agency, or

6 the name, position, and mailing address of the

7 person prosecuting the matter for a public

8 agency, if the prosecutor is not a law enforce9 ment officer.

10 ‘‘(5) ACCESS TO DOCUMENTARY EVIDENCE AND

11 INVESTIGATIVE FILE.—Unless waived in writing by

12 the law enforcement officer or the counsel or rep13 resentative of that officer, not later than 15 days be14 fore a disciplinary hearing described in paragraph

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

16 with—

17 ‘‘(A) a copy of the complete file of the pre18 disciplinary investigation; and

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

20 of all documents, including transcripts, records,

21 written statements, written reports, analyses,

22 and electronically recorded information that—

23 ‘‘(i) contain exculpatory information;

24 ‘‘(ii) are intended to support any dis25 ciplinary action; or
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1 ‘‘(iii) are to be introduced in the dis2 ciplinary hearing.

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

4 Unless waived in writing by the law enforcement of5 ficer or the counsel or representative of that

6 officer—

7 ‘‘(A) not later than 15 days before a dis8 ciplinary hearing, the prosecuting agency shall

9 notify the law enforcement officer or the coun10 sel or representative of that officer of all phys11 ical, non-documentary evidence; and

12 ‘‘(B) not later than 10 days before a dis13 ciplinary hearing, the prosecuting agency shall

14 provide a reasonable date, time, place, and

15 manner for the law enforcement officer or the

16 counsel or representative of the law enforce17 ment officer to examine the evidence described

18 in subparagraph (A).

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

20 waived in writing by the law enforcement officer or

21 the counsel or representative of the officer, not later

22 than 15 days before a disciplinary hearing, the pros23 ecuting agency shall notify the law enforcement offi24 cer or the counsel or representative of the officer, of

25 the name and address of each witness for the law
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1 enforcement agency employing the law enforcement

2 officer.

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

4 hearing, the law enforcement officer who is the sub5 ject of the hearing shall be entitled to due process,

6 including—

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

8 or a representative;

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

10 witnesses against the officer; and

11 ‘‘(C) the right to call and examine wit12 nesses on behalf of the officer.

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

14 ‘‘(A) IN GENERAL.—A State or local gov15 ernment agency, other than the law enforce16 ment agency employing the officer who is sub17 ject of the disciplinary hearing, shall—

18 ‘‘(i) determine the composition of an

19 independent and impartial disciplinary

20 hearing board;

21 ‘‘(ii) appoint an independent and im22 partial hearing officer; and

23 ‘‘(iii) establish such procedures as

24 may be necessary to comply with this sec25 tion.
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1 ‘‘(B) PEER REPRESENTATION ON DISCIPLI2 NARY HEARING BOARD.—A disciplinary hearing

3 board that includes employees of the law en4 forcement agency employing the law enforce5 ment officer who is the subject of the hearing,

6 shall include not less than 1 law enforcement

7 officer of equal or lesser rank to the officer who

8 is the subject of the hearing.

9 ‘‘(10) SUMMONSES AND SUBPOENAS.—

10 ‘‘(A) IN GENERAL.—The disciplinary hear11 ing board or independent hearing officer—

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

13 summonses or subpoenas, on behalf of—

14 ‘‘(I) the law enforcement agency

15 employing the officer who is the sub16 ject of the hearing; or

17 ‘‘(II) the law enforcement officer

18 who is the subject of the hearing; and

19 ‘‘(ii) upon written request of either

20 the agency or the officer, shall issue a

21 summons or subpoena, as appropriate, to

22 compel the appearance and testimony of a

23 witness or the production of documentary

24 evidence.
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1 ‘‘(B) EFFECT OF FAILURE TO COMPLY

2 WITH SUMMONS OR SUBPOENA.—With respect

3 to any failure to comply with a summons or a

4 subpoena issued under subparagraph (A)—

5 ‘‘(i) the disciplinary hearing officer or

6 board shall petition a court of competent

7 jurisdiction to issue an order compelling

8 compliance; and

9 ‘‘(ii) subsequent failure to comply

10 with such a court order issued pursuant to

11 a petition under clause (i) shall—

12 ‘‘(I) be subject to contempt of a

13 court proceedings according to the

14 laws of the jurisdiction within which

15 the disciplinary hearing is being con16 ducted; and

17 ‘‘(II) result in the recess of the

18 disciplinary hearing until the witness

19 becomes available to testify and does

20 testify or is held in contempt.

21 ‘‘(11) CLOSED HEARING.—A disciplinary hear22 ing shall be closed to the public unless the law en23 forcement officer who is the subject of the hearing

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

25 specified individuals or to the general public.
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1 ‘‘(12) RECORDING.—All aspects of a discipli2 nary hearing, including pre-hearing motions, shall be

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

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

5 side in a disciplinary hearing may move for and be

6 entitled to sequestration of witnesses.

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

8 officer or board shall administer an oath or affirma9 tion to each witness, who shall testify subject to the

10 laws of perjury of the State in which the disciplinary

11 hearing is being conducted.

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

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

14 the presentation of all the evidence and after

15 oral or written argument, the hearing officer or

16 board shall deliberate and render a written final

17 decision on each charge.

18 ‘‘(B) FINAL DECISION ISOLATED TO

19 CHARGE BROUGHT.—The hearing officer or

20 board may not find that the law enforcement

21 officer who is the subject of the hearing is liable

22 for disciplinary action for any violation of law,

23 as to which the officer was not charged.
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1 ‘‘(16) BURDEN OF PERSUASION AND STANDARD

2 OF PROOF.—The burden of persuasion or standard

3 of proof of the prosecuting agency shall be—

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

5 each charge alleging false statement or rep6 resentation, fraud, dishonesty, deceit, moral

7 turpitude, or criminal behavior on the part of

8 the law enforcement officer who is the subject

9 of the charge; and

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

11 to all other charges.

12 ‘‘(17) FACTORS OF JUST CAUSE TO BE CONSID13 ERED BY THE HEARING OFFICER OR BOARD.—A law

14 enforcement officer who is the subject of a discipli15 nary hearing shall not be found guilty of any charge

16 or subjected to any disciplinary action unless the

17 disciplinary hearing board or independent hearing

18 officer finds that—

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

20 charge could reasonably be expected to have

21 had knowledge of the probable consequences of

22 the alleged conduct set forth in the charge

23 against the officer;
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1 ‘‘(B) the rule, regulation, order, or proce2 dure that the officer who is the subject of the

3 charge allegedly violated is reasonable;

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

5 charge, made a reasonable, fair, and objective

6 effort to discover whether the officer did in fact

7 violate the rule, regulation, order, or procedure

8 as charged;

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

10 the investigation arbitrarily or unfairly, or in a

11 discriminatory manner, against the officer who

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

13 brought in good faith; and

14 ‘‘(E) the proposed disciplinary action rea15 sonably relates to the seriousness of the alleged

16 violation and to the record of service of the offi17 cer who is the subject of the charge.

18 ‘‘(18) NO COMMISSION OF AVIOLATION.—If the

19 officer who is the subject of the disciplinary hearing

20 is found not to have committed the alleged

21 violation—

22 ‘‘(A) the matter is concluded;

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

24 against the officer;
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1 ‘‘(C) the personnel file of that officer shall

2 not contain any reference to the charge for

3 which the officer was found not guilty; and

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

5 during the pendency of the disposition of the

6 charge shall be restored to the officer as though

7 no charge had ever been filed against the offi8 cer, including salary or regular pay, vacation,

9 holidays, longevity pay, education incentive pay,

10 shift differential, uniform allowance, lost over11 time, or other premium pay opportunities, and

12 lost promotional opportunities.

13 ‘‘(19) COMMISSION OF AVIOLATION.—

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

15 the subject of the charge is found to have com16 mitted the alleged violation, the hearing officer

17 or board shall make a written recommendation

18 of a penalty to the law enforcement agency em19 ploying the officer or any other governmental

20 entity that has final disciplinary authority, as

21 provided by applicable State or local law.

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

23 other governmental entity may not impose a

24 penalty greater than the penalty recommended

25 by the hearing officer or board.
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1 ‘‘(20) APPEAL.—Any officer who has been

2 found to have committed an alleged violation may

3 appeal from a final decision of a hearing officer or

4 hearing board to a court of competent jurisdiction or

5 to an independent neutral arbitrator to the extent

6 available in any other administrative proceeding

7 under applicable State or local law, or a collective

8 bargaining agreement.

9 ‘‘(i) WAIVER OF RIGHTS.—

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

11 that the officer is under investigation or is the sub12 ject of a charge may, after such notification, waive

13 any right or procedure guaranteed by this section.

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

15 under this subsection shall be—

16 ‘‘(A) in writing; and

17 ‘‘(B) signed by—

18 ‘‘(i) the officer, who shall have con19 sulted with counsel or a representative be20 fore signing any such waiver; or

21 ‘‘(ii) the counsel or representative of

22 the officer, if expressly authorized by sub23 section (h).
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1 ‘‘(j) SUMMARY PUNISHMENT.—Nothing in this sec2 tion shall preclude a public agency from imposing sum3 mary punishment.

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

5 section may be construed to preclude a law enforcement

6 agency from imposing an emergency suspension on a law

7 enforcement officer, except that any such suspension

8 shall—

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

10 with the requirements of subsection (h); and

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

12 or benefit.

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

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

15 or other penalty against a law enforcement officer for the

16 exercise of any right provided to the officer under this sec17 tion.

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

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

20 or remedy that a law enforcement officer may have under

21 any constitution, statute, ordinance, order, rule, regula22 tion, procedure, written policy, collective bargaining agree23 ment, or any other source.

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

25 enforcement officer who is aggrieved by a violation of, or
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1 is otherwise denied any right afforded by, the Constitution

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

3 or any administrative rule or regulation promulgated pur4 suant thereto, may file suit in any Federal or State court

5 of competent jurisdiction for declaratory or injunctive re6 lief to prohibit the law enforcement agency from violating

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

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

9 or denial.

10 ‘‘(o) PROTECTION OF LAW ENFORCEMENT OFFICER

11 PERSONNEL FILES.—

12 ‘‘(1) RESTRICTIONS ON ADVERSE MATERIAL

13 MAINTAINED IN OFFICERS’ PERSONNEL RECORDS.—

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

15 had an opportunity to review and comment, in

16 writing, on any adverse material included in a

17 personnel record relating to the officer, no law

18 enforcement agency or other governmental enti19 ty may—

20 ‘‘(i) include the adverse material in

21 that personnel record; or

22 ‘‘(ii) possess or maintain control over

23 the adverse material in any form as a per24 sonnel record within the law enforcement
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1 agency or elsewhere in the control of the

2 employing governmental entity.

3 ‘‘(B) RESPONSIVE MATERIAL.—Any re4 sponsive material provided by an officer to ad5 verse material included in a personnel record

6 pertaining to the officer shall be—

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

8 and

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

10 to whom the adverse material is released in

11 accordance with law and at the same time

12 as the adverse material is released.

13 ‘‘(2) RIGHT TO INSPECTION OF, AND RESTRIC14 TIONS ON ACCESS TO INFORMATION IN, THE OFFI15 CER’S OWN PERSONNEL RECORDS.—

16 ‘‘(A) IN GENERAL.—Subject to subpara17 graph (B), a law enforcement officer shall have

18 the right to inspect all of the personnel records

19 of the officer not less than annually.

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

21 officer shall not have access to information in

22 the personnel records of the officer if the

23 information—

24 ‘‘(i) relates to the investigation of al25 leged conduct that, if proven, would con-
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1 stitute or have constituted a definite viola2 tion of a statute providing for criminal

3 penalties, but as to which no formal charge

4 was brought;

5 ‘‘(ii) contains letters of reference for

6 the officer;

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

8 document other than the results;

9 ‘‘(iv) is of a personal nature about an10 other officer, and if disclosure of that in11 formation in non-redacted form would con12 stitute a clearly unwarranted intrusion into

13 the privacy rights of that other officer; or

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

15 brought by or on behalf of the officer

16 against the employing agency of that offi17 cer that may be discovered in any judicial

18 or administrative proceeding between the

19 officer and the employer of that officer.

20 ‘‘(p) STATES’ RIGHTS.—

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

22 may be construed—

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

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

25 on the date of enactment of the State and Local
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1 Law Enforcement Discipline, Accountability,

2 and Due Process Act of 2001, that confers a

3 right or a protection that equals or exceeds the

4 right or protection afforded by this section; or

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

6 State or local law that confers a right or protec7 tion that equals or exceeds a right or protection

8 afforded by this section.

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

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

11 local law, that confers fewer rights or provides less

12 protection for a law enforcement officer than any

13 provision in this section shall be preempted by this

14 section.

15 ‘‘(q) COLLECTIVE BARGAINING AGREEMENTS.—

16 Nothing in this section may be construed to—

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

18 agreed-upon collective bargaining agreement, in ef19 fect on the date of enactment of the State and Local

20 Law Enforcement Discipline, Accountability, and

21 Due Process Act of 2001, that provides for substan22 tially the same or a greater right or protection af23 forded under this section; or
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1 ‘‘(2) prohibit the negotiation of any additional

2 right or protection for an officer who is subject to

3 any collective bargaining agreement.’’.

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

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

6 Act of 1968 (42 U.S.C. 3711 et seq.) is amended by in7 serting after the item relating to section 819 the following:

‘‘Sec. 820. Discipline, accountability, and due process of State and local law enforcement officers.’’.

SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE

AND LOCAL CRIMINAL JUSTICE AGENCIES.

Nothing in this Act shall be construed to authorize

any department, agency, officer, or employee of the

United States to exercise any direction, supervision, or

control of any police force or any criminal justice agency

of any State or any political subdivision thereof.

SEC. 5. EFFECTIVE DATE.

The amendments made by this Act shall take effect

with respect to each State on the earlier of—

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

Act; or

(2) the conclusion of the second legislative session of the State that begins on or after the date of

enactment of this Act.

Æ