Over at Cato, Walter Olson has a summary of an ongoing issue that has had some resonance in the police killing of Baltimore resident Freddie Gray — the “law enforcement officer bill of rights” (LEOBR) that many states have passed, giving cops extra protections when they’re investigated for abuse of force.
Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.
Prison and jail guards are often covered by these laws as well, and scandals of corrections administration (the state-run Baltimore jail had a huge one in which the Maryland LEOBR was implicated) are often hard to investigate because of the law’s barriers. Union contracts often add further layers of insulation from discipline. In its coverage of abuse allegations at New York’s notorious Attica prison, for example, the New York Times reported, “Under their union contract, corrections officers are obligated to answer questions only from their employers and have the right to refuse to talk to outside police agencies. State Police investigators attempted to interview 15 guards; 11 declined to cooperate.”
Aware of Baltimore’s long (and still-unfolding) history of police misconduct, Mayor Rawlings-Blake and the state ACLU and other groups have called for a partial rollback of Maryland’s LEOBR. Yet its defenders are well organized, and reform bills never made it out of committee in the now-concluded state legislative session.
Meanwhile, Pennsylvania’s House unanimously voted last year to enact a “Correctional Officers’ Bill of Rights”–as if this all were completely uncontroversial. It shouldn’t be.
Olson also links to a 2012 piece in Reason by Mike Riggs that digs a little further.
The rights created by these bills differ from state to state, but here’s how a typical police misconduct investigation works in states that have a law enforcement bill of rights in place:
A complaint is filed against an officer by a member of the public or a fellow officer. Police department leadership reviews the complaint and decides whether to investigate. If the department decides to pursue the complaint, it must inform the officer and his union. That’s where the special treatment begins, but it doesn’t end there.
Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.
What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by “non-government agents,” which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.
A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.
I’d add one thing. Many times, these bills have strict procedures for how officers are to be investigated. Not following the procedures isn’t a huge deal for the officers who violate them, but it does get the cop being investigated off the hook. The “bill of rights” can essentially become a how-to guide for cops to get their colleagues out of trouble. I wrote about a good example of this a few years ago after a case in Louisiana.
In 2007, Shreveport police officer Wiley Willis arrested 38-year-old Angela Garbarino on suspicion of drunken driving. While in custody, as captured on the video below, Garbarino begins arguing with Willis about what she said is her right to make a phone call. About a minute later, Willis walks over and turns off the video camera. When the camera comes back on, Garbarino is lying on the floor in a pool of her own blood. She was later photographed with severe facial injuries she says were the result of Willis beating her. Willis’ attorney stated that she tripped and fell while the camera was off. After the video went viral, Willis was fired, but has never been criminally charged.
Last month, the Shreveport Municipal Fire and Police Civil Service Board voted to reinstate Willis on the police force. He’ll get full back pay and benefits for the year-and-a-half he was fired. The reason? During the internal investigation of Willis, a polygraph machine operator failed to record the results of his Q&A with Willis. This apparently is a violation of Louisiana’s “Police Officer’s Bill of Rights,” a set of guidelines every department must follow when investigating officer misconduct.
Garbarino won a $400,000 settlement from the city of Shreveport last year.
So because of that minor error in procedure, the bad cop gets his job back with full backpay. The residents and taxpayers of Shreveport get hit twice — they get to foot the bill for Garbarino’s compensation, and they get an abusive cop back on the city’s streets.
It’s true that, technically, these extra rights don’t pertain to criminal investigations. The problem is that criminal investigations are usually launched after the internal investigation has already begun. So in effect, the “cooling off period” (which might cynically be called the “get your stories straight period”) and many of the other protections end up providing the same protections they’d have provided if they applied in a criminal investigation.