Sen. Biden (D-DE) introduced:
State and Local Law Enforcement
Discipline, Accountability,
and Due Process Act of 2007
S.449
A BILL
To amend title I of the Omnibus
Crime Control and Safe Streets Act of 1968 to provide standards and procedures
to guide both State and local law enforcement agencies and law enforcement
officers during internal investigations, interrogation of law enforcement
officers, and administrative disciplinary hearings, to ensure accountability of
law enforcement officers, to guarantee the due process rights of law
enforcement officers, and to require States to enact law enforcement discipline,
accountability, and due process laws.
Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the
'State and Local Law Enforcement Discipline, Accountability, and Due Process
Act of 2007'.
SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND POLICY.
(a) Findings -- Congress finds
that--
(1) the rights of law
enforcement officers to engage in political activity or to refrain from
engaging in political activity, except when on duty, or to run as candidates
for public office, unless such service is found to be in conflict with their
service as officers, are activities protected by the first amendment of the
United States Constitution, as applied to the States through the 14th amendment
of the United States Constitution, but these rights are often violated by the
management of State and local law enforcement agencies;
(2) a significant lack of due
process rights of law enforcement officers during internal investigations and
disciplinary proceedings has resulted in a loss of confidence in these
processes by many law enforcement officers, including those unfairly targeted
for their labor organization activities or for their aggressive enforcement of
the laws, demoralizing many rank and file officers in communities and States;
(3) unfair treatment of officers
has potentially serious long-term consequences for law enforcement by
potentially deterring or otherwise preventing officers from carrying out their
duties and responsibilities effectively and fairly;
(4) the lack of labor-management
cooperation in disciplinary matters and either the perception or the actuality
that officers are not treated fairly detrimentally impacts the recruitment of
and retention of effective officers, as potential officers and experienced
officers seek other careers, which has serious implications and repercussions
for officer morale, public safety, and labor-management relations and strife
and can affect interstate and intrastate commerce, interfering with the normal
flow of commerce;
(5) there are serious
implications for the public safety of the citizens and residents of the United
States which threatens the domestic tranquility of the United States because of
a lack of statutory protections to ensure--
(A) the due process and
political rights of law enforcement officers;
(B) fair and thorough internal
investigations and interrogations of and disciplinary proceedings against law
enforcement officers; and
(C) effective procedures for
receipt, review, and investigation of complaints against officers, fair to both
officers and complainants; and
(6) resolving these disputes and
problems and preventing the disruption of vital police services is essential to
the well-being of the United States and the domestic tranquility of the Nation.
(b) Declaration of Policy --
Congress declares that it is the purpose of this Act and the policy of the
United States to--
(1) protect the due process and political rights of State and local law enforcement officers and ensure equality and fairness of treatment among such officers;
(2) provide continued police
protection to the general public;
(3) provide for the general
welfare and ensure domestic tranquility; and
(4) prevent any impediments to
the free flow of commerce, under the rights guaranteed under the United States
Constitution and Congress' authority thereunder.
SEC. 3. DISCIPLINE,
ACCOUNTABILITY, AND DUE PROCESS OF OFFICERS.
(a) In General -- Part H of
title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3781 et seq.) is amended by adding at the end the following:
'SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF STATE AND LOCAL LAW ENFORCEMENT OFFICERS.
'(a) Definitions -- In this
section:
'(1) DISCIPLINARY ACTION -- The
term 'disciplinary action' means any adverse personnel action, including
suspension, reduction in pay, rank, or other employment benefit, dismissal,
transfer, reassignment, unreasonable denial of secondary employment, or similar
punitive action taken against a law enforcement officer.
'(2) DISCIPLINARY HEARING -- The
term 'disciplinary hearing' means an administrative hearing initiated by a law
enforcement agency against a law enforcement officer, based on an alleged
violation of law , that, if proven, would subject the law enforcement officer
to disciplinary action.
'(3) EMERGENCY SUSPENSION -- The
term 'emergency suspension' means the temporary action by a law enforcement
agency of relieving a law enforcement officer from the active performance of
law enforcement duties without a reduction in pay or benefits when the law
enforcement agency, or an official within that agency, determines that there is
probable cause, based upon the conduct of the law enforcement officer, to
believe that the law enforcement officer poses an immediate threat to the
safety of that officer or others or the property of others.
'(4) INVESTIGATION -- The term
'investigation'--
'(A) means an action taken to
determine whether a law enforcement officer violated a law by a public agency
or a person employed by a public agency, acting alone or in cooperation with or
at the direction of another agency, or a division or unit within another
agency, regardless of a denial by such an agency that any such action is not an
investigation; and
'(B) includes--
'(i) asking questions of any
other law enforcement officer or non-law enforcement officer;
'(ii) conducting observations;
'(iii) reviewing and evaluating
reports, records, or other documents; and
'(iv) examining physical
evidence.
(5) LAW ENFORCEMENT OFFICER --
The terms 'law enforcement officer' and 'officer' have the meaning given the
term 'law enforcement officer' in section 1204, except the term does not
include a law enforcement officer employed by the United States, or any
department, agency, or instrumentality thereof.
'(6) PERSONNEL RECORD -- The
term 'personnel record' means any document, whether in written or electronic
form and irrespective of location, that has been or may be used in determining
the qualifications of a law enforcement officer for employment, promotion,
transfer, additional compensation, termination or any other disciplinary
action.
'(7) PUBLIC AGENCY AND LAW
ENFORCEMENT AGENCY -- The terms 'public agency' and 'law enforcement agency'
each have the meaning given the term 'public agency' in section 1204, except
the terms do not include the United States, or any department, agency, or
instrumentality thereof.
'(8) SUMMARY PUNISHMENT -- The
term 'summary punishment' means punishment imposed--
'(A) for a violation of law that
does not result in any disciplinary action; or
'(B) for a violation of law that
has been negotiated and agreed upon by the law enforcement agency and the law
enforcement officer, based upon a written waiver by the officer of the rights
of that officer under subsection (i) and any other applicable law or
constitutional provision, after consultation with the counsel or representative
of that officer.
'(b) Applicability--
'(1) IN GENERAL -- This section
sets forth the due process rights, including procedures, that shall be afforded
a law enforcement officer who is the subject of an investigation or
disciplinary hearing.
'(2) NONAPPLICABILITY- This
section does not apply in the case of--
'(A) an investigation of
specifically alleged conduct by a law enforcement officer that, if proven,
would constitute a violation of a statute providing for criminal penalties; or
'(B) a nondisciplinary action
taken in good faith on the basis of the employment related performance of a law
enforcement officer.
'(c) Political Activity-
'(1) RIGHT TO ENGAGE OR NOT TO
ENGAGE IN POLITICAL ACTIVITY -- Except when on duty or acting in an official
capacity, a law enforcement officer shall not be prohibited from engaging in
political activity or be denied the right to refrain from engaging in political
activity.
'(2) RIGHT TO RUN FOR ELECTIVE
OFFICE -- A law enforcement officer shall not be--
'(A) prohibited from being a
candidate for an elective office or from serving in such an elective office,
solely because of the status of the officer as a law enforcement officer; or
'(B) required to resign or take
an unpaid leave from employment with a law enforcement agency to be a candidate
for an elective office or to serve in an elective office, unless such service
is determined to be in conflict with or incompatible with service as a law
enforcement officer.
'(3) ADVERSE PERSONNEL ACTION --
An action by a public agency against a law enforcement officer, including
requiring the officer to take unpaid leave from employment, in violation of
this subsection shall be considered an adverse personnel action within the
meaning of subsection (a)(1).
'(d) Effective Procedures for
Receipt, Review, and Investigation of Complaints Against Law Enforcement
Officers--
'(1) COMPLAINT PROCESS -- Not
later than 1 year after the effective date of this section, each law
enforcement agency shall adopt and comply with a written complaint procedure
that--
'(A) authorizes persons from
outside the law enforcement agency to submit written complaints about a law
enforcement officer to--
'(i) the law enforcement agency
employing the law enforcement officer; or
'(ii) any other law enforcement
agency charged with investigating such complaints;
'(B) sets forth the procedures
for the investigation and disposition of such complaints;
'(C) provides for public access
to required forms and other information concerning the submission and
disposition of written complaints; and
'(D) requires notification to
the complainant in writing of the final disposition of the complaint and the
reasons for such disposition.
'(2) INITIATION OF AN
INVESTIGATION--
'(A) IN GENERAL- Except as
provided in subparagraph (B), an investigation based on a complaint from
outside the law enforcement agency shall commence not later than 15 days after
the receipt of the complaint by--
'(i) the law enforcement agency
employing the law enforcement officer against whom the complaint has been made;
or
'(ii) any other law enforcement
agency charged with investigating such a complaint.
'(B) EXCEPTION -- Subparagraph
(A) does not apply if--
'(i) the law enforcement agency
determines from the face of the complaint that each allegation does not
constitute a violation of law ; or
'(ii) the complainant fails to
comply substantially with the complaint procedure of the law enforcement agency
established under this section.
'(3) COMPLAINANT OR VICTIM
CONFLICT OF INTEREST -- The complainant or victim of the alleged violation of
law giving rise to an investigation under this subsection may not conduct or
supervise the investigation or serve as an investigator.
'(e) Notice of Investigation--
'(1) IN GENERAL -- Any law
enforcement officer who is the subject of an investigation shall be notified of
the investigation 24 hours before the commencement of questioning of such
officer or to otherwise being required to provide information to an
investigating agency.
'(2) CONTENTS OF NOTICE- Notice
given under paragraph (1) shall include--
'(A) the nature and scope of the
investigation;
'(B) a description of any
allegation contained in a written complaint;
'(C) a description of each
violation of law alleged in the complaint for which suspicion exists that the
officer may have engaged in conduct that may subject the officer to
disciplinary action; and
'(D) the name, rank, and command
of the officer or any other individual who will be conducting the
investigation.
'(f) Rights of Law Enforcement
Officers Prior to and During Questioning Incidental to an Investigation -- If a
law enforcement officer is subjected to questioning incidental to an
investigation that may result in disciplinary action against the officer, the
following minimum safeguards shall apply:
'(1) COUNSEL AND
REPRESENTATION--
'(A) IN GENERAL -- Any law
enforcement officer under investigation shall be entitled to effective counsel
by an attorney or representation by any other person who the officer chooses,
such as an employee representative, or both, immediately before and during the
entire period of any questioning session, unless the officer consents in
writing to being questioned outside the presence of counsel or representative.
'(B) PRIVATE CONSULTATION --
During the course of any questioning session, the officer shall be afforded the
opportunity to consult privately with counsel or a representative, if such
consultation does not repeatedly and unnecessarily disrupt the questioning
period.
'(C) UNAVAILABILITY OF COUNSEL
-- If the counsel or representative of the law enforcement officer is not
available within 24 hours of the time set for the commencement of any
questioning of that officer, the investigating law enforcement agency shall
grant a reasonable extension of time for the law enforcement officer to obtain
counsel or representation.
'(2) REASONABLE HOURS AND TIME
-- Any questioning of a law enforcement officer under investigation shall be
conducted at a reasonable time when the officer is on duty, unless exigent
circumstances compel more immediate questioning, or the officer agrees in
writing to being questioned at a different time, subject to the requirements of
subsections (e) and paragraph (1).
'(3) PLACE OF QUESTIONING --
Unless the officer consents in writing to being questioned elsewhere, any
questioning of a law enforcement officer under investigation shall take place--
'(A) at the office of the
individual conducting the investigation on behalf of the law enforcement agency
employing the officer under investigation; or
'(B) the place at which the
officer under investigation reports for duty.
'(4) IDENTIFICATION OF
QUESTIONER -- Before the commencement of any questioning, a law enforcement officer
under investigation shall be informed of--
'(A) the name, rank, and command
of the officer or other individual who will conduct the questioning; and
'(B) the relationship between
the individual conducting the questioning and the law enforcement agency
employing the officer under investigation.
'(5) SINGLE QUESTIONER -- During
any single period of questioning of a law enforcement officer under
investigation, each question shall be asked by or through 1 individual.
'(6) REASONABLE TIME PERIOD --
Any questioning of a law enforcement officer under investigation shall be for a
reasonable period of time and shall allow reasonable periods for the rest and
personal necessities of the officer and the counsel or representative of the
officer, if such person is present.
'(7) NO THREATS, FALSE
STATEMENTS, OR PROMISES TO BE MADE--
'(A) IN GENERAL -- Except as
provided in subparagraph (B), no threat against, false or misleading statement
to, harassment of, or promise of reward to a law enforcement officer under
investigation shall be made to induce the officer to answer any question, give
any statement, or otherwise provide information.
'(B) EXCEPTION -- The law
enforcement agency employing a law enforcement officer under investigation may
require the officer to make a statement relating to the investigation by
explicitly threatening disciplinary action, including termination, only if--
'(i) the officer has received a
written grant of use and derivative use immunity or transactional immunity by a
person authorized to grant such immunity; and
'(ii) the statement given by the
law enforcement officer under such an immunity may not be used in any
subsequent criminal proceeding against that officer.
'(8) RECORDING--
'(A) IN GENERAL -- All
questioning of a law enforcement officer under an investigation shall be
recorded in full, in writing or by electronic device, and a copy of the
transcript shall be provided to the officer under investigation before any
subsequent period of questioning or the filing of any charge against that
officer.
'(B) SEPARATE RECORDING -- To
ensure the accuracy of the recording, an officer may utilize a separate
electronic recording device, and a copy of any such recording (or the
transcript) shall be provided to the public agency conducting the questioning,
if that agency so requests.
'(9) USE OF HONESTY TESTING
DEVICES PROHIBITED -- No law enforcement officer under investigation may be
compelled to submit to the use of a lie detector, as defined in section 2 of
the Employee Polygraph Protection Act of 1988 (29 U.S.C. 2001).
'(g) Notice of Investigative
Findings and Disciplinary Recommendation and Opportunity to Submit a Written
Response--
'(1) NOTICE -- Not later than 30
days after the conclusion of an investigation under this section, the person in
charge of the investigation or the designee of that person shall notify the law
enforcement officer who was the subject of the investigation, in writing, of
the investigative findings and any recommendations for disciplinary action.
'(2) OPPORTUNITY TO SUBMIT
WRITTEN RESPONSE--
'(A) IN GENERAL -- Not later
than 30 days after receipt of a notification under paragraph (1), and before
the filing of any charge seeking the discipline of such officer or the
commencement of any disciplinary proceeding under subsection (h), the law
enforcement officer who was the subject of the investigation may submit a
written response to the findings and recommendations included in the
notification.
'(B) CONTENTS OF RESPONSE -- The
response submitted under subparagraph (A) may include references to additional
documents, physical objects, witnesses, or any other information that the law
enforcement officer believes may provide exculpatory evidence.
'(h) Disciplinary Hearings--
'(1) NOTICE OF OPPORTUNITY FOR
HEARING -- Except in a case of summary punishment or emergency suspension
(subject to subsection (k)), before the imposition of any disciplinary action
the law enforcement agency shall notify the officer that the officer is
entitled to a due process hearing by an independent and impartial hearing
officer or board.
'(2) REQUIREMENT OF
DETERMINATION OF VIOLATION -- No disciplinary action may be taken against a law
enforcement officer unless an independent and impartial hearing officer or
board determines, after a hearing and in accordance with the requirements of
this subsection, that the law enforcement officer committed a violation of law.
'(3) TIME LIMIT -- No
disciplinary charge may be brought against a law enforcement officer unless--
'(A) the charge is filed not
later than the earlier of--
'(i) 1 year after the date on
which the law enforcement agency filing the charge had knowledge or reasonably
should have had knowledge of an alleged violation of law ; or
'(ii) 90 days after the
commencement of an investigation; or
'(B) the requirements of this
paragraph are waived in writing by the officer or the counsel or representative
of the officer.
'(4) NOTICE OF HEARING -- Unless
waived in writing by the officer or the counsel or representative of the
officer, not later than 30 days after the filing of a disciplinary charge
against a law enforcement officer, the law enforcement agency filing the charge
shall provide written notification to the law enforcement officer who is the
subject of the charge, of--
'(A) the date, time, and
location of any disciplinary hearing, which shall be scheduled in cooperation
with the law enforcement officer, or the counsel or representative of the
officer, and which shall take place not earlier than 30 days and not later than
60 days after notification of the hearing is given to the law enforcement
officer under investigation;
'(B) the name and mailing
address of the independent and impartial hearing officer, or the names and
mailing addresses of the independent and impartial hearing board members; and
'(C) the name, rank, command,
and address of the law enforcement officer prosecuting the matter for the law
enforcement agency, or the name, position, and mailing address of the person
prosecuting the matter for a public agency, if the prosecutor is not a law
enforcement officer.
'(5) ACCESS TO DOCUMENTARY
EVIDENCE AND INVESTIGATIVE FILE- Unless waived in writing by the law
enforcement officer or the counsel or representative of that officer, not later
than 15 days before a disciplinary hearing described in paragraph (4)(A), the
law enforcement officer shall be provided with--
'(A) a copy of the complete file
of the pre-disciplinary investigation; and
'(B) access to and, if so
requested, copies of all documents, including transcripts, records, written
statements, written reports, analyses, and electronically recorded information
that--
'(i) contain exculpatory
information;
'(ii) are intended to support
any disciplinary action; or
'(iii) are to be introduced in
the disciplinary hearing.
'(6) EXAMINATION OF PHYSICAL
EVIDENCE -- Unless waived in writing by the law enforcement officer or the
counsel or representative of that officer--
'(A) not later than 15 days
before a disciplinary hearing, the prosecuting agency shall notify the law
enforcement officer or the counsel or representative of that officer of all
physical, non-documentary evidence; and
'(B) not later than 10 days
before a disciplinary hearing, the prosecuting agency shall provide a
reasonable date, time, place, and manner for the law enforcement officer or the
counsel or representative of the law enforcement officer to examine the
evidence described in subparagraph (A).
'(7) IDENTIFICATION OF WITNESSES
-- Unless waived in writing by the law enforcement officer or the counsel or
representative of the officer, not later than 15 days before a disciplinary
hearing, the prosecuting agency shall notify the law enforcement officer or the
counsel or representative of the officer, of the name and address of each
witness for the law enforcement agency employing the law enforcement officer.
'(8) REPRESENTATION- During a
disciplinary hearing, the law enforcement officer who is the subject of the
hearing shall be entitled to due process, including--
'(A) the right to be represented
by counsel or a representative;
'(B) the right to confront and
examine all witnesses against the officer; and
'(C) the right to call and
examine witnesses on behalf of the officer.
'(9) HEARING BOARD AND
PROCEDURE--
'(A) IN GENERAL -- A State or
local government agency, other than the law enforcement agency employing the
officer who is subject of the disciplinary hearing, shall--
'(i) determine the composition
of an independent and impartial disciplinary hearing board;
'(ii) appoint an independent and
impartial hearing officer; and
'(iii) establish such procedures
as may be necessary to comply with this section.
'(B) PEER REPRESENTATION ON
DISCIPLINARY HEARING BOARD -- A disciplinary hearing board that includes
employees of the law enforcement agency employing the law enforcement officer
who is the subject of the hearing, shall include not less than 1 law
enforcement officer of equal or lesser rank to the officer who is the subject
of the hearing.
'(10) SUMMONSES AND SUBPOENAS--
'(A) IN GENERAL- The
disciplinary hearing board or independent hearing officer--
'(i) shall have the authority to
issue summonses or subpoenas, on behalf of--
'(I) the law enforcement agency
employing the officer who is the subject of the hearing; or
'(II) the law enforcement
officer who is the subject of the hearing; and
'(ii) upon written request of
either the law enforcement agency or the officer, shall issue a summons or subpoena,
as appropriate, to compel the appearance and testimony of a witness or the
production of documentary evidence.
'(B) EFFECT OF FAILURE TO COMPLY
WITH SUMMONS OR SUBPOENA -- With respect to any failure to comply with a
summons or a subpoena issued under subparagraph (A)--
'(i) the disciplinary hearing
officer or board shall petition a court of competent jurisdiction to issue an
order compelling compliance; and
'(ii) subsequent failure to
comply with such a court order issued pursuant to a petition under clause (i)
shall--
'(I) be subject to contempt of a
court proceedings according to the laws of the jurisdiction within which the
disciplinary hearing is being conducted; and
'(II) result in the recess of
the disciplinary hearing until the witness becomes available to testify and
does testify or is held in contempt.
'(11) CLOSED HEARING- A
disciplinary hearing shall be closed to the public unless the law enforcement
officer who is the subject of the hearing requests, in writing, that the
hearing be open to specified individuals or to the general public.
'(12) RECORDING -- All aspects
of a disciplinary hearing, including pre-hearing motions, shall be recorded by
audio tape, video tape, or transcription.
'(13) SEQUESTRATION OF
WITNESSES- Either side in a disciplinary hearing may move for and be entitled
to sequestration of witnesses.
'(14) TESTIMONY UNDER OATH- The
hearing officer or board shall administer an oath or affirmation to each
witness, who shall testify subject to the laws of perjury of the State in which
the disciplinary hearing is being conducted.
'(15) FINAL DECISION ON EACH
CHARGE--
'(A) IN GENERAL -- At the
conclusion of the presentation of all the evidence and after oral or written
argument, the hearing officer or board shall deliberate and render a written
final decision on each charge.
'(B) FINAL DECISION ISOLATED TO
CHARGE BROUGHT -- The hearing officer or board may not find that the law enforcement
officer who is the subject of the hearing is liable for disciplinary action for
any violation of law as to which the officer was not charged.
'(16) BURDEN OF PERSUASION AND
STANDARD OF PROOF -- The burden of persuasion or standard of proof of the
prosecuting agency shall be--
'(A) by clear and convincing
evidence as to each charge alleging false statement or representation, fraud,
dishonesty, deceit, moral turpitude, or criminal behavior on the part of the
law enforcement officer who is the subject of the charge; and
'(B) by a preponderance of the
evidence as to all other charges.
'(17) FACTORS OF JUST CAUSE TO
BE CONSIDERED BY THE HEARING OFFICER OR BOARD -- A law enforcement officer who
is the subject of a disciplinary hearing shall not be found guilty of any
charge or subjected to any disciplinary action unless the disciplinary hearing
board or independent hearing officer finds that--
'(A) the officer who is the
subject of the charge could reasonably be expected to have had knowledge of the
probable consequences of the alleged conduct set forth in the charge against
the officer;
'(B) the rule, regulation,
order, or procedure that the officer who is the subject of the charge allegedly
violated is reasonable;
'(C) the charging party, before
filing the charge, made a reasonable, fair, and objective effort to discover
whether the officer did in fact violate the rule, regulation, order, or
procedure as charged;
'(D) the charging party did not
conduct the investigation arbitrarily or unfairly, or in a discriminatory
manner, against the officer who is the subject of the charge, and the charge
was brought in good faith; and
'(E) the proposed disciplinary
action reasonably relates to the seriousness of the alleged violation and to
the record of service of the officer who is the subject of the charge.
'(18) NO COMMISSION OF A
VIOLATION -- If the officer who is the subject of the disciplinary hearing is
found not to have committed the alleged violation--
'(A) the matter is concluded;
'(B) no disciplinary action may
be taken against the officer;
'(C) the personnel record of
that officer shall not contain any reference to the charge for which the
officer was found not guilty; and
'(D) any pay and benefits lost
or deferred during the pendency of the disposition of the charge shall be
restored to the officer as though no charge had ever been filed against the
officer, including salary or regular pay, vacation, holidays, longevity pay,
education incentive pay, shift differential, uniform allowance, lost overtime,
or other premium pay opportunities, and lost promotional opportunities.
'(19) COMMISSION OF A
VIOLATION--
'(A) IN GENERAL -- If the
officer who is the subject of the charge is found to have committed the alleged
violation, the hearing officer or board shall make a written recommendation of
a penalty to the law enforcement agency employing the officer or any other
governmental entity that has final disciplinary authority, as provided by
applicable State or local law.
'(B) PENALTY -- The employing
agency or other governmental entity may not impose a penalty greater than the
penalty recommended by the hearing officer or board.
'(20) APPEAL -- Any officer who
has been found to have committed an alleged violation may appeal from a final
decision of a hearing officer or hearing board to a court of competent
jurisdiction or to an independent neutral arbitrator to the extent available in
any other administrative proceeding under applicable State or local law , or a
collective bargaining agreement.
'(i) Waiver of Rights--
'(1) IN GENERAL -- An officer
who is notified that the officer is under investigation or is the subject of a
charge may, after such notification, waive any right or procedure guaranteed by
this section.
'(2) WRITTEN WAIVER -- A written
waiver under this subsection shall be--
'(A) in writing; and
'(B) signed by--
'(i) the officer, who shall have
consulted with counsel or a representative before signing any such waiver; or
'(ii) the counsel or
representative of the officer, if expressly authorized by subsection (h).
'(j) Summary Punishment --
Nothing in this section shall preclude a public agency from imposing summary
punishment.
'(k) Emergency Suspension --
Nothing in this section may be construed to preclude a law enforcement agency
from imposing an emergency suspension on a law enforcement officer, except that
any such suspension shall--
'(1) be followed by a hearing in
accordance with the requirements of subsection (h); and
'(2) not deprive the affected
officer of any pay or benefit.
'(l) Retaliation for Exercising
Rights -- There shall be no imposition of, or threat of, disciplinary action or
other penalty against a law enforcement officer for the exercise of any right
provided to the officer under this section.
'(m) Other Remedies Not Impaired
-- Nothing in this section may be construed to impair any other right or remedy
that a law enforcement officer may have under any constitution, statute,
ordinance, order, rule, regulation, procedure, written policy, collective
bargaining agreement, or any other source.
'(n) Declaratory or Injunctive
Relief -- A law enforcement officer who is aggrieved by a violation of, or is
otherwise denied any right afforded by, the Constitution of the United States,
a State constitution, this section, or any administrative rule or regulation
promulgated pursuant thereto, may file suit in any Federal or State court of
competent jurisdiction for declaratory or injunctive relief to prohibit the law
enforcement agency from violating or otherwise denying such right, and such
court shall have jurisdiction, for cause shown, to restrain such a violation or
denial.
'(o) Protection of Law
Enforcement Officer Personnel Files-
'(1) RESTRICTIONS ON ADVERSE
MATERIAL MAINTAINED IN OFFICERS' PERSONNEL RECORDS-
'(A) IN GENERAL -- Unless the
officer has had an opportunity to review and comment, in writing, on any
adverse material generated after the effective date of the State and Local Law
Enforcement Discipline, Accountability, and Due Process Act of 2007 to be
included in a personnel record relating to the officer, no law enforcement
agency or other governmental entity may--
'(i) include the adverse
material in that personnel record; or
'(ii) possess or maintain
control over the adverse material in any form as a personnel record within the
law enforcement agency or elsewhere in the control of the employing
governmental entity.
'(B) RESPONSIVE MATERIAL -- Any
responsive material provided by an officer to adverse material included in a
personnel record pertaining to the officer shall be--
'(i) attached to the adverse
material; and
'(ii) released to any person or
entity to whom the adverse material is released in accordance with law and at
the same time as the adverse material is released.
'(2) RIGHT TO INSPECTION OF, AND
RESTRICTIONS ON ACCESS TO INFORMATION IN, THE OFFICER'S OWN PERSONNEL RECORDS--
'(A) IN GENERAL -- Subject to
subparagraph (B), a law enforcement officer shall have the right to inspect all
of the personnel records of the officer not less than annually.
'(B) RESTRICTIONS -- A law enforcement
officer shall not have access to information in the personnel records of the
officer if the information--
'(i) relates to the
investigation of alleged conduct that, if proven, would constitute or have
constituted a definite violation of a statute providing for criminal penalties,
but as to which no formal charge was brought;
'(ii) contains letters of
reference for the officer;
'(iii) contains any portion of a
test document other than the results;
'(iv) is of a personal nature
about another officer, and if disclosure of that information in non-redacted
form would constitute a clearly unwarranted intrusion into the privacy rights
of that other officer; or
'(v) is relevant to any pending
claim brought by or on behalf of the officer against the employing agency of
that officer that may be discovered in any judicial or administrative
proceeding between the officer and the employer of that officer.
'(p) States' Rights-
'(1) IN GENERAL -- Nothing in
this section may be construed--
'(A) to preempt any State or
local law , or any provision of a State or local law , in effect on the date of
enactment of the State and Local Law Enforcement Discipline, Accountability,
and Due Process Act of 2007, that confers a right or a protection that equals
or exceeds the right or protection afforded by this section; or
'(B) to prohibit the enactment
of any State or local law that confers a right or protection that equals or
exceeds a right or protection afforded by this section.
'(2) STATE OR LOCAL LAWS
PREEMPTED -- A State or local law , or any provision of a State or local law ,
that confers fewer rights or provides less protection for a law enforcement
officer than any provision in this section shall be preempted by this section.
'(q) Collective Bargaining
Agreements- Nothing in this section may be construed to--
'(1) preempt any provision in a
mutually agreed-upon collective bargaining agreement, in effect on the date of
enactment of the State and Local Law Enforcement Discipline, Accountability,
and Due Process Act of 2007, that provides for substantially the same or a
greater right or protection afforded under this section; or
'(2) prohibit the negotiation of
any additional right or protection for an officer who is subject to any
collective bargaining agreement.'.
(b) Technical Amendment -- The
table of contents of title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C.
SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE AND LOCAL CRIMINAL JUSTICE AGENCIES.
Nothing in this Act or the
amendments made by this Act shall be construed to authorize any department,
agency, officer, or employee of the United States to exercise any direction,
supervision, or control of any police force or any criminal justice agency of
any State or any political subdivision thereof.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act
shall take effect with respect to each State on the earlier of--
(1) 2 years after the date of
enactment of this Act; or
(2) the conclusion of the second
legislative session of the State that begins on or after the date of enactment
of this Act.
Introduced on 1/31/2007 and referred to the Committee on
the Judiciary