Text: H.R.1972 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (04/02/2009)


111th CONGRESS
1st Session
H. R. 1972


To amend the Omnibus Crime Control and Safe Streets Act of 1968 to provide standards and procedures to guide 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 2, 2009

Mr. Stupak (for himself and Mr. Paulsen) introduced the following bill; which was referred to the Committee on the Judiciary


A BILL

To amend the Omnibus Crime Control and Safe Streets Act of 1968 to provide standards and procedures to guide 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 “Law Enforcement Officer’s Procedural Bill of Rights Act of 2009”.

SEC. 2. Findings; declaration of purpose and policy.

(a) Findings.—Congress finds that—

(1) 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 legitimate enforcement of the laws, demoralizing many rank and file officers in communities and States;

(2) 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 in relation to law enforcement and homeland security;

(3) in light of Congressional authorization of local law enforcement officers to act across State lines for Homeland Security purposes during emergencies, and in connection with mutual aid agreements among the States, there is a need to provide stability and continuity in policing operations and safeguard the rights and protections of law enforcement officers who may be called upon to act beyond their local jurisdictions;

(4) the rights of law enforcement officers to engage in or refrain from political activity while off-duty, or to run as candidates for public office, unless such service is found to be in conflict with their service as officers, are protected by the first amendment of the United States Constitution;

(5) 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;

(6) 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 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

(7) 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 purpose and policy.—Congress declares that it is the purpose of this Act and the policy of the United States to—

(1) protect the due process 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 rights of officers.

The Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3782 et seq.) is amended—

(1) by redesignating part JJ, as added by section 952 of Public Law 110–315 (relating to Loan Repayment for Prosecutors and Public Defenders), as part LL, and moving such part so that such part follows part KK;

(2) in part LL, as so redesignated and moved by paragraph (1), by redesignating section 3001 as section 3021; and

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

“PART MMDiscipline, accountability, and due process rights of State and local law enforcement officers

“SEC. 3031. Discipline, accountability, and due process rights of State and local law enforcement officers.

“(a) Definitions.—In this section:

“(1) DISCIPLINARY ACTION.—The term ‘disciplinary action’ means any adverse personnel action taken against a law enforcement officer in response to an alleged violation of any rule, regulation, policy, procedure, or directive by such officer, and shall include suspension, reduction in pay, rank, or other employment benefit, dismissal, transfer, reassignment, unreasonable denial of secondary employment, denial of promotion, unpaid leave from employment, or other adverse actions.

“(2) DISCIPLINARY HEARING.—The term ‘disciplinary hearing’ means an administrative hearing initiated by a law enforcement agency against a law enforcement officer which may result in disciplinary action.

“(3) SUMMARY SUSPENSION.—The term ‘summary 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, others, or the property of others.

“(4) INVESTIGATION.—The term ‘investigation’ means an action taken to determine whether a law enforcement officer violated a rule, regulation, policy, procedure, or directive, which may include—

“(A) asking questions of any other law enforcement officer or nonlaw enforcement officer;

“(B) conducting observations;

“(C) asking questions of law enforcement officers during an on scene investigation of an officer involved shooting;

“(D) seizing property;

“(E) reviewing and evaluating reports, records, or other documents; and

“(F) 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 or file, 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) LIE DETECTOR.—The term ‘lie detector’ means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

“(9) SUMMARY PUNISHMENT.—The term ‘summary punishment’ means any punishment imposed for a violation of law that—

“(A) does not result in any disciplinary action; or

“(B) 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 (h) 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 law enforcement officers, and those serving in a law enforcement capacity holding an elected or appointed office.

“(c) Effective procedures for receipt, review, and investigation of complaints against law enforcement officers.—

“(1) COMPLAINT PROCESS.—Not later than one 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 within and 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 within or 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) shall 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) CONFLICT OF INTEREST.—The complainant or victim of the alleged conduct giving rise to an investigation under this subsection or any other individual with a conflict of interest may not conduct or supervise the investigation or serve as an investigator.

“(d) Notice of Investigation.—

“(1) IN GENERAL.—Any law enforcement officer who is the subject of an investigation shall be notified of the investigation not less than 24 hours before the commencement of questioning or before 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.

“(e) 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.—The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer is on duty, or during the normal waking hours for the law enforcement officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the law enforcement officer being interrogated, the law enforcement officer shall be compensated for any such off-duty time in accordance with regular department procedures.

“(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 QUESTIONERS.—Before the commencement of any questioning, a law enforcement officer under investigation shall be informed of—

“(A) the name, rank, and command of each officer or other individual who will conduct the questioning; and

“(B) the relationship between each such individual conducting the questioning and the law enforcement agency employing the officer under investigation.

“(5) NO MORE THAN TWO QUESTIONERS.—All questions directed to the law enforcement officer under interrogation shall be asked by and through no more than two interrogators at one time.

“(6) REASONABLE TIME PERIOD.—Any questioning of a law enforcement officer under investigation shall be for a reasonable period of time, taking into consideration the gravity and complexity of the issue being investigated, 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), the law enforcement officer shall not be subjected to offensive language, threats, misleading statements, or promises of a reward in attempts 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) COERCION.—No statement made during interrogation by a law enforcement officer under duress, coercion, or threat shall be admissible in any subsequent civil proceeding against that officer.

“(9) CRIMINAL CHARGES.—If prior to or during the interrogation of a law enforcement officer it is deemed that the officer may be charged with a criminal offense, the officer shall be immediately informed of his or her constitutional rights, and shall be entitled to counsel. Disciplinary action based solely on criminal charges shall not be made final until the criminal investigation of such charges has been completed, and all court proceedings are concluded.

“(10) 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, free of charge, before any subsequent period of questioning or the filing of any charge against that officer.

“(i) Except as provided in clause (ii) a transcribed copy of any notes made by a stenographer and any reports of complaints made by investigators or other persons, shall be made available to the law enforcement officer.

“(ii) Clause (i) does not apply if the notes or reports have been deemed to be confidential by the investigating agency. No notes or reports that have been deemed to be confidential may be included in the officer’s personnel file.

“(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.

“(11) USE OF HONESTY TESTING DEVICES.—

“(A) 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).

“(B) No disciplinary action or other recrimination shall be taken against a law enforcement officer for refusing to submit to a lie detector test, nor shall any comment regarding an officer’s decision to submit to or refuse such a test be entered in the investigator’s notes or in any other file or document, nor shall any testimony or evidence regarding such a decision by an officer be admissible at a subsequent hearing, trial, or proceeding, whether judicial or administrative.

“(12) USE OF THE MEDIA.—The employer shall not cause the law enforcement officer under interrogation to be subjected to visits by the press or news media without the express consent of the officer, nor shall the name, home address, or photograph of the officer be given to the press or news media without the officer’s express consent.

“(f) Notice of investigative findings and disciplinary recommendation and opportunity To submit a written response.—

“(1) NOTICE.—Except as provided in paragraph (3), not later than 15 days after the conclusion of an investigation under this subsection, 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 (g), 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.

“(3) EXCEPTIONS.—Permissible exceptions to paragraph (1) are as follows:

“(A) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or prosecution, the time during which the criminal investigation or prosecution is pending shall be extended until 30 days after the completion of such investigation or prosecution.

“(B) If the law enforcement officer voluntarily waives the 15-day period in writing, the time period shall be extended for the period of time specified in the written waiver.

“(C) If the investigation is a multi-jurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.

“(D) If the law enforcement officer who is being investigated is incapacitated or is otherwise unavailable.

“(E) If the investigation involves an allegation of workers’ compensation fraud on the part of the law enforcement officer.

“(g) Disciplinary hearing.—

“(1) NOTICE OF OPPORTUNITY FOR HEARING.—Except in a case of summary punishment or summary suspension (subject to subsection (i) or (j), respectively), 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 a rule, regulation, policy, procedure, or directive.

“(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 a rule, regulation, policy, procedure, or directive; 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 this subsection, 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, nondocumentary evidence; and

“(B) not later than 15 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 of the officer’s choosing;

“(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 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 electronic media 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, 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, policy, procedure, or directive 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, policy, procedure, or directive 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) FINDING OF NO 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 file of that officer may 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, other premium pay opportunities, medical expenses, lost pension, and lost promotional opportunities.

“(19) FINDING 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.—

“(A) IN GENERAL.—Any officer who has been found to have committed an alleged violation shall have 30 days to make an 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.

“(B) EVIDENTIARY PROCEDURES.—Any administrative hearing under this section shall follow applicable evidentiary procedures provided under State law.

“(h) 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 (g).

“(i) Summary punishment.—Nothing in this section shall preclude a public agency from imposing summary punishment.

“(j) Summary suspension.—Nothing in this section shall be construed to preclude a law enforcement agency from imposing a summary 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 (g); and

“(2) not deprive the affected officer of any pay or benefit.

“(k) 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.

“(l) 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.

“(m) 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.

“(n) Personnel files.—

“(1) Except for administrative purposes and purposes of departmental evaluation, personnel files of law enforcement officers shall be sealed. Information contained in a law enforcement officer’s personnel file shall be considered privileged.

“(2)(A) Except as provided in subparagraph (B), no law enforcement officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the law enforcement officer having first read and signed the instrument containing the adverse comment, indicating that he or she is aware of such comment.

“(B) If a law enforcement officer refuses to read or sign an instrument as described in subparagraph (A), the officer’s refusal shall be noted in writing on the instrument, the instrument shall be signed or initialed by another officer who witnessed the law enforcement officer’s refusal, and the instrument shall be entered in the appropriate personnel or other file.

“(3) A law enforcement officer shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment, and shall be available for the purpose of any review or possible appeal.

“(4) Every law enforcement department shall, upon the request of a law enforcement officer, permit the officer to inspect personnel files that are used or have been used to determine the officer’s qualifications for employment, evaluation, promotion, additional compensation, or termination or other disciplinary action. Such inspection shall be permitted during usual business hours, with no loss of compensation to the officer.

“(5) Each employer shall keep each law enforcement officer’s personnel file or a true and correct copy thereof as long as the officer is still an active employee of the employer, and shall make the file or copy thereof available within a twenty-four hour period of time after a request therefore by the officer.

“(6) If, after a law enforcement officer has examined his or her personnel file, the officer believes that any portion of the material is mistakenly or unlawfully placed in the file, the officer may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Any request made pursuant to this paragraph shall include a statement by the officer describing the corrections or deletions requested and the reasons supporting those corrections or deletions. A statement submitted pursuant to this paragraph shall become part of the personnel file of the officer.

“(7) Within 30 days after receipt of a request under paragraph (6), the employer shall either grant the officer’s request or notify the officer of the decision to deny the request. If the employer denies the request, in whole or in part, the employer shall provide to the officer, in writing, the reasons for denying the request, and that written statement shall become part of the personnel file of the officer.

“(8) A law enforcement officer shall not have access to information in the personnel records of the officer if the information—

“(A) 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;

“(B) contains letters of reference for the officer;

“(C) contains any portion of a test document other than the results;

“(i) is of a personal nature about another officer, and if disclosure of that information in nonredacted form would constitute a clearly unwarranted intrusion into the privacy rights of that other officer; or

“(D) 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.

“(o) Protection of personal records and personal property.—

“(1) No law enforcement officer shall be required as a condition of employment by his or her employing law enforcement department or other public agency to consent to the use of his or her photograph or identity as a law enforcement officer on the Internet for any purpose if that officer reasonably believes that the disclosure may result in threat, harassment, intimidation, or harm to that officer or his or her family.

“(2) For purposes of job assignment or other personnel action, no law enforcement officer shall be required or requested to disclose any item of his property, income, assets, source of income, debts, or personal or domestic expenditures (including those of any member of his family or household) unless such information—

“(A) is obtained or required under State law or proper legal procedure;

“(B) tends to indicate a conflict of interest with respect to the performance of the officer’s official duties; or

“(C) is necessary for the employing agency to ascertain the desirability of assigning the law enforcement officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered.

“(3) No law enforcement department shall deny or refuse to any law enforcement officer the rights and protections guaranteed to the officer by this section.

“(p) Court of jurisdiction; Judicial enforcement.—

“(1) The appropriate State court in the State in which a law enforcement department is located shall have original jurisdiction over any proceeding brought by any law enforcement officer against any law enforcement department for alleged violations of this section. Nothing in this subsection shall be construed, by reason of a claim arising under this section, to deny to the courts of the United States supplemental jurisdiction over any Federal law claim for which such courts have jurisdiction under section 1367 of title 28, United States Code, or any other provision of law.

“(2) In any case where the court finds that a law enforcement department has violated any of the provisions of this section, the court shall render appropriate injunctive or other relief to remedy the violation and to prevent future violations of a like or similar nature, including the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the law enforcement department from taking any disciplinary action against the law enforcement officer, attorney fees, and any other remedies deemed appropriate by the court.

“(3) If the court finds that a bad faith or frivolous denial of rights, or a malicious filing for an improper purpose, has been brought pursuant to this section, the court may order sanctions against the offending party, the party’s attorney, or both. Such sanctions may include reasonable expenses incurred by the opposing party (including attorney’s fees), as the court deems appropriate. Nothing in this paragraph is intended to subject actions or filings under this section to rules or standards that are different from those applicable to other civil actions or filings. Any law enforcement department which has adopted, through the action of its governing body or its official designee, any procedure which provides to law enforcement officers, at a minimum, the same rights and protections as provided pursuant to this section shall not be subject to this section with regard to such a procedure.

“(4) Nothing in this section shall in any way be construed to limit the use of any public safety agency or any law enforcement officer in the fulfilling of mutual aid agreements with other jurisdictions or agencies, nor shall this section be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies involved.

“(q) Law enforcement agencies right To protect crime scenes.—

“(1) Every law enforcement agency is entitled to protect the integrity of their crime scene investigation.

“(2) A law enforcement agency has the right, when a law enforcement officer’s attorney is present, to prohibit the officer and attorney from entering the actual crime scene so that evidence is not disturbed.

“(r) States’ rights.—Nothing in this section may be construed—

“(1) 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 Law Enforcement Officer’s Procedural Bill of Rights Act of 2009, that confers a right or a protection that equals or exceeds the right or protection afforded by this section; or

“(2) 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.

“(s) 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 Law Enforcement Officer’s Procedural Bill of Rights Act of 2009, 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.”.

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) the date that is 2 years after the date of enactment of this Act; or

(2) the last day of the second legislative session of the State that begins on or after the date of enactment of this Act.