Walter Olson on the Cato Institute blog cites critical problems with a group of laws, depending on the state, which are Officers’ Bill of Rights laws. In Maryland they are Law Enforcement Officers Bill of Rights (LEOBR) and in California they are Peace Officers Bill of Rights (POBR).
Mr. Olson writes, “The problems of the teacher tenure system, especially in big cities where powerful unions defend members against dismissal, are familiar enough. Less well known is the newer, parallel–and arguably more alarming–rise of police and prison-guard tenure under what are known as Law Enforcement Officers Bill of Rights (LEOBR or LEOBOR) laws. “
Freddie Gray is the latest in a series of poster-children for police misconduct. The 25-year-old died of a severe spinal cord injury after police arrested him on April 12 – he died a week later. Police on Friday now admitted he did not get timely medical care after his arrest and was not buckled into a seat belt while being transported in a police van.
However, what is unclear is why Mr. Gray needed medical attention in the first place.
And that is now the key question which, as Mr. Olson points out, is frustrating those like Baltimore Mayor Stephanie Rawlings-Blake, who has blamed Maryland’s LEOBR law for thwarting the investigation into Mr. Gray’s death.
According to the Baltimore paper, the mayor has been outspoken about what she sees as a delay in the investigation, and she said in national interviews that investigators have not “fully engaged” all the police officers involved in the arrest and she blamed this on LEOBR.
“I don’t understand how she can continually say they’re not cooperating,” Michael E. Davey, an attorney for the police union, told The Baltimore Sun on Wednesday. “They are. They did. And they’re lucky they got those statements before I got involved.”
“This is a criminal investigation, and it has nothing to do with the Law Enforcement Officers’ Bill of Rights,” Mr. Davey said. “Police officers, like any other individual or citizen who is being investigated for a criminal act, have a constitutional right not to speak to the police.
“At no point when you’re hired by a police department do you sign a waiver saying you’ve given up your constitutional rights,” he said.
Mr. Olson writes, “Maryland’s law provides that after an incident superiors cannot question an officer without the presence of a lawyer of the officer’s choosing, and that officers have 10 days to line up such representation. Critics say that by the time those suspected of misbehavior have to commit to a story, they will have had ample opportunity to consult with others about what to say. Most of the officers present have cooperated with the investigation of Gray’s death, the city says, but at least one has not.”
Mr. Olson then cites Mike Riggs’s 2012 account in Reason (“Why Firing a Bad Cop Is Damn Near Impossible”) which notes, “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.”
Mr. Riggs continues, “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.”
Mr. Olson notes, “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.”
In California, we have the Peace Officer’s Bill of Rights. Back in 2012, former Supreme Court Justice Cruz Reynoso lamented the fact that POBR led to delays and also lack of access to police officers in their investigation into the pepper-spraying incident.
Under Penal Code section 832.7(a), “Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section S32.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”
ACLU staff attorney Michael Risher in 2012 lamented the state of the law which in California goes much further than any other state in not only protecting the rights of peace officers, but also seeming to hide their misconduct from public scrutiny.
“Police officers in other states don’t get these types of incredible veil of secrecy for everything related to disciplinary proceedings,” Mr. Risher told the Vanguard. “Police officers have enormous authority as they walk the streets – they carry guns, they can arrest us, they can toss us in jail. We the people of this state should have the right to know which police officers are abusing their authority, and which officers quite frankly are carrying out their duties without generating any complaints.”
Michael Risher argued that these codes “create a veil of secrecy with anything having to do with police officer discipline, complaints against police officers, or how police officers have abused their authority.”
“That is very different from a police officer’s bill of rights, and it’s a big problem,” he stated. He argued that it is perfectly appropriate for police officers to have procedural protections when they have been accused of wrongdoing and are in the process of fighting those charges.
The problem is that all complaints against police officers, regardless of whether they are founded or unfounded, “all of those complaints are also completely shielded from public scrutiny and the public has no idea of knowing whether the officer that they are interacting with has recently been accused of some serious offense and for whatever reason is still on the force.”
Under these penal and government codes, contents of a police officer’s personnel file, records of complaints, records of investigation and anything having to do with the police disciplinary procedure are all kept confidential.
Under the 2006 decision in Copley Press v. Superior Court, the California Supreme Court held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public.
Advocates argue that the decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.
The Copley Press decision essentially undid the legislatively-enacted distinction between employing agencies and independent agencies. This allowed police records to be cloaked in confidentiality.
“They’ve been relentless over the past 25 years to create a tool for law enforcement agencies to work without public scrutiny,” Tom Newton, executive director of the California Newspaper Publishers Association, says of police unions. “With Copley, they hit the jackpot.”
The decision itself held that San Diego Civil Service Commission records on administrative appeals by police officers were confidential because the Civil Service Commission performed a function similar to the police department in the disciplinary process and thereby functioned as the employing agency.
According to a 2009 Orange County Register article, “California laws enacted more than 30 years ago to protect honest peace officers from over-zealous internal investigations have become a safety net for bad cops.”
“The mandates – the most stringent in the nation — have given troubled officers special privileges that make it harder to get rid of them and nearly impossible for the public to learn whether they’ve been adequately disciplined,” they continue. “Laws that began as an effort to protect police and the integrity of their work expanded over time, giving more and more cover to officer misconduct. Attempts to scale back those laws have met with opposition from California’s highly organized police unions, who argue it could affect officer safety.”
“California is the most restrictive state in the nation, when it comes to police secrecy,” said Jim Chanin, a former ACLU attorney in San Francisco. “It’s California’s dirty little secret.”
“In 2006, the California Supreme Court in the notorious Copley Press case, the Court held that cities… that for years had increased public trust in the police by having citizen review boards,” Michael Risher told the Vanguard. “The Supreme Court held that these penal code provisions that protect police officers personnel files, records and complaints against them, made those public proceedings illegal.”
Meanwhile, states are reluctant to change things.
Mr. Olson writes, “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.”
He continues, “Meanwhile, Pennsylvania’s House unanimously voted last year to enact a ‘Correctional Officers’ Bill of Rights,’ ” concluding, “as if this all were completely uncontroversial. It shouldn’t be.”
—David M. Greenwald reporting