A Peace Officers Bill of Rights: Helping to Guarantee a National Due Process Standard

02/22/05
Congress & Session: 109 - 1
Bill Status:

2004 Department of Labor statistics reveal that approximately 1.4 million men and women serve in law enforcement across the United States. This includes 840,000 police and detectives, 476,000 corrections officers, and 84,000 probation or court officers (also designated as peace officers). For a decade, the United States Congress has considered federal legislation that would align due process rights between State and local law enforcement agencies. Over the years, Senators Joseph Biden (D-DE) and Mitch McConnell (R-KY) have introduced legislation designed to create a national standard for Internal Affairs Division investigations. Companion legislation has also been introduced in the House of Representatives by Representative Jim Ramstad (R-MN). Championed by police organizations across the country, the legislation amends the Omnibus Crime and Safe Streets Act of 1968. Each year the future of the legislation faces an uncertain process. The legislation provides "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, and to require States to enact law enforcement discipline, accountability, and due process laws." Due process is key to smooth relations between officers and the law enforcement agency managers. The current national imbalance in the administration of due process-worker rights in law enforcement is prevalent as evidenced by the lack adequate protections for police officers in major American municipalities to limited and/or total absence of due process rights for officers in smaller cities and rural communities. Many large law enforcement agencies operate under collective bargaining or meet and confer arrangements. However, in a highly objective report dated September, 1996 entitled "Focus on Administration Internal Affairs in Small Agency", Kevin M. Courtney outlined varied paths small law enforcement agencies take to promote an equitable, sometimes questionable execution of IAD procedures. Courtney, who then served as Director of the Big Rapids, Michigan Department of Public Safety stated, "When faced with accusations of inappropriate, unprofessional, or illegal conduct within the department, the executive of a small agency has several choices for how to proceed; conduct the investigation personally, assign it to the accused employee's supervisor, or ask another [outside] agency to investigate". As solutions, each choice offered by Courtney on the surface, provides a credible answer, particularly to community concerns. However, for officers under scrutiny, a national standard may very well provide less ambiguity along with a better safety net for officers. Poorly accomplished IAD investigations hurt everyone involved, citizen complainants and their families, officers and their families and departments with fragile police community relations. To avoid the traps that may create injustices for police officers and their families, a handful of major municipalities and states have enacted due process procedures. Some of these programs have worked well while others remain a work in progress. Meanwhile, police officers without representation are subject to more adverse scrutiny and in some cases fewer constitutional rights than civilians accused, arrested, and convicted of crimes. Across the country, police, parole, probation, corrections, sheriffs, troopers and highway patrol officers serve as the thin blue line that helps guarantee our safety. The law enforcement community is one of the most complex segments of the American workforce. However, all segments of the industry share one common philosophical goal, like the motto says, "To Protect and to Serve". Because officers are on duty both day and night, Americans can sleep soundly knowing law enforcement officers are on the job. In the execution of their duties, their presence preempts criminal activity. Law enforcement officers are asked to project themselves head on into life and death public safety situations that could spin out of control if it were not for officers' ability to respond quickly. This is a protection we as Americans have come to take for granted. And finally, in this age of terrorism and homeland security, our police officers are now confronted with frightful dynamic changes that see national and international foreign policy issues overlap with traditional public safety mandates. NCPSO Solutions The National Coalition of Public Safety Officers- Communications Workers of America (NCPSO-CWA) and members of its coalition believe that engaging a national debate on the matter of police due process is critical to the equal protection of workers in the United States. For more than a century, contemporary civil, human and worker rights advocates have helped advance federal legislation guaranteeing worker rights under the law. That includes improvements on the issue of "due process". Why a federal due process bill? Primarily to address the issue of balance of redress from jurisdiction to jurisdiction while setting a national standard that renders protections on all law enforcement jobs. Law enforcement officers seek the same federal protections as workers in other industries. It is well established that prior to a government worker being deprived of a property right (his/her job) that worker is, under law, entitled to some type of prior due process opportunity to hear the charges against him/her and respond to those charges. It is usually illegal for a government worker to be fired first, and given a hearing later. In many instances, especially small agencies, managers "shoot first" and ask questions later. That is not constitutionally proper. NCPSO legislation corrects this problem by providing a guaranteed pre-termination hearing process. Endowed with a sworn and unusual public trust, the public in general oftentimes does not see law enforcement officers as workers. Recent history within the past century has shown a deepening rift between law enforcement and civil and human rights watchdog organizations around the world. However, the NCPSO has reached out to many of these same nationally recognized groups on the front-side of its legislative effort. These talks have proven useful and the partnerships built will indeed produce a new standard of cooperation at a historic new level. The IAD Investigation: On the Job Nemesis Law enforcement officers are taught from day one, their responsibility is to protect life and property. The life or death situations confronting our officers today require split second decisions and action. It is instilled upon them that their duty is to take immediate action to prevent crime or to apprehend suspects of criminal activities. Often, it is the most active officers who become the subject of Internal Affairs Division investigations. It is this Catch 22 situation that makes them feel as though they are on the losing end of a process that may take years to complete. According to Dr. Gary S. Aumiller, Executive Director of the International Society for Police and Criminal Psychology, many "internal affairs investigations are 'decision-driven' rather than 'evidence-driven'. This means that the investigator makes a quick decision and tries to support it by finding evidence, rather than following the evidence to where ever it leads and making a decision based on that evidence." Essentially, he is suggesting that the investigation has the premise the officer is "guilty until proven innocent." The investigation may become riddled with mistakes and ignores the rights of due process that a police officer is guaranteed as a citizen of the United States. This happens because there are no strict guidelines to focus these investigations. Likewise, police officers involved in traumatic incidents, such as an officer involved shooting, even those with the best training and experience, are pressured by investigators to recall incidents that may not be after a life threatening event, solidified in their memory. The legal investigative model requires a step-by-step sequencing which is an order the traumatized brain is not capable of fulfilling. The officer is commanded to fill in the blanks. At this point, accuracy as well as the officer's mental health both suffer. The officer later has a lapse in memory and realizes his/her original story was not as accurate as they believed. Then the officer is afraid to change the story for fear of appearing dishonest. If an officer was interviewed with an advocate initially, they could be encouraged to leave blanks in their story where blanks exist at that time. As a result of these on-the-job dilemmas, police officers and their families suffer greatly. Without dynamic training and operational due process and representation, a high percentage of cops who are involved in critical incidents or complaint situations followed up by intensive internal affair investigations never complete their career. Research from as far back as the 1970's was showing 70% of officers leaving their job after a shooting incident. Most state the investigation after the shooting was as traumatic as or worse than the original incident itself. This trend has not changed, except in areas where due process bills have been established locally. The result: hundreds of thousands of dollars to retrain new officers, experienced officers off the street, careers and families destroyed, and ultimately reduced safety and greater costs for the citizenry. Due process during investigations is important because:

Often supervisors do not clearly communicate expectations for employee performance.
Supervisors and IAD investigators sometimes fail to gather all of the relevant facts concerning conduct or behavior.
IAD investigators sometimes fail to talk to all of the involved parties, including the employee and the observer.
Many supervisors do not focus on behavior and performance. They tend to address personalities.
Supervisor's fail to realize that discipline should be used to correct behavior rather than punish people for their actions.
Discipline should be used as the final opportunity for improvement.
The POBRA will insure that:
Investigators will gather all of the facts concerning work performance, conduct or behavior.
Interviews will be conducted with the appropriate parties including the officer and any witnesses.
All of the facts of the situation are documented including all who were interviewed, gathering all information relevant to the situation.
Review any information relevant to the infraction such as training, performance evaluations, and prior discipline.
All of the above information will be discussed with department management prior to taking any action.
The Scientific Price of Stress- Providing a Support System to Promote Healthy Police Officers NCPSO believes that healthy police officers, those void of cynicism, who trust their employer, who have availed to them an array of medical and scientific benefits to counteract the stresses of the job, perform better on the streets. Proper mental health combined with a safe and trustworthy working environment are key. Departments should cease discouraging mental health treatment for their officers through prejudicial treatment of those officers who receive help for emotional problems, problems of addiction or problems of everyday living where the opinion of a professional may help them in their personal decision making. Officers should be guaranteed confidentiality and that the process of getting help will not affect the course of their career. This is particularly relevant during Internal Investigations and problems in their relationship. Research has shown distinctly that an officer undergoing an internal investigation is 6.7 times more likely to take their own life. If they are going through a divorce they are 4.8 times more likely to attempt suicide. And if both conditions, an internal investigation and divorce, are occurring at the same time the increased likelihood of suicide in an officer is 21 times that of the officer not experiencing either problem! The combination of guaranteeing due process during an internal investigation and the encouragement of professional mental health treatment will go a long way in establishing a healthy police force. A healthy police force is more efficient, more economical and protects the rights of the citizenry with greater care. Congressional Findings As mentioned earlier, Congress has examined this process and has come up with a number of findings that provide insight into the need for a national due process standard. S. 1277, the State and Local Law Enforcement Discipline, Accountability, and Due Process Act of 2003
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 theses process.
Unfair treatment of officers potentially has serious long term consequences.
In light of Congressional authorization of local law enforcement officers to act across state lines for Homeland Security purposes during emergencies - there is a need to provide stability and continuity in policing operations and safeguard the rights and protections of law enforcement officers.
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.
There are serious implications for the public safety of the citizens and residents of the United States which threaten the domestic tranquility of the United States because of a lack of statutory protections.
Resolving these disputes preventing the disruption of vital police services is essential to the well-being of the United States and the domestic tranquility of the Nation.
An Historic Approach With the introduction of the NCPSO Peace Officer's Bill of Rights, CWA and its law enforcement partners see an historic opportunity for a broad range of internationally recognized advocacy groups to work together. Cooperation at the national level between police, social and political advocacy groups that heretofore have seen conflicting viewpoints is the first step toward improving community policing throughout our nation. NCPSO-CWA is looking to create a historic opportunity to bridge the gap that exists between the police and the communities they serve by including such organizations on the front side of the NCPSO-CWA legislative process. Over the past six months, NCPSO has had open dialogue with diverse national advocacy groups in an effort to forge significant new partnerships. The critical result of such partnership will be felt back at the local level between police and citizens. NCPSO-CWA is embarking on a path to build trust within all our communities. So far, support has come from the National Black Leadership Forum, the National Black Police Association, the International Society for Police and Criminal Psychology, the AFL-CIO and many of its affiliates. Components of the NCPSO POBRA The National Coalition of Public Safety Officer-CWA proposal is comprised of common sense provisions that have been tested across the country. There do remain however, key differences between legislation previously advanced in the Congress. The NCPSO POBRA bill is not designed to compete with current legislation. Authors of the bill simply worked to craft a product that may offer an alternative to the work previously advanced. The NCPSO supports any due process legislation that provides for improved benefits for officers. The following are some of the key provisions of the NCPSO proposal. This bill includes, but is not limited to the following:
Initiation of investigation of an outside complaint should commence within 15 days
Interrogation conditions

24 hour notice of nature of investigation

Interrogation should be conducted at a reasonable time

No threats or intimidation

Tape recording permitted by officer under investigation

Right to attorney during criminal investigation

Limits on administrative investigations

Right to representation during an investigation

Sanctions preclude certain transfers or reassignment, no disciplinary action, denial of promotion or property interest.
30 day administrative appeal
Constitutional guarantees for officer involved shooting
Sealed personnel files except during administrative procedures
No lie detector tests for threats of disciplinary action for refusal to submit
Added protections for personal records and personal property
Exclusive Management rights to protect the crime scene
No preemption for states that confer equal or greater protections. States that offer fewer or lesser protections shall be preempted.
States or municipalities that operate under mutually agreed upon a collective bargaining agreement that affords equal or greater rights for the officer shall not be preempted.

For more information, please contact: Alfonso M. Pollard, CWA-Legislative Representative
Communications Workers of America
501 Third Street, NW 10th Floor
Washington, D.C. 20001
202-434-1315 (O)
apollard@cwa-union.org