My View: Officers’ Bill of Rights Laws the Key to Police Accountability

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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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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18 Comments

  1. Tia Will

    I certainly agree with you that these laws do seem to represent a major contributor to police accountability. In the statement made by Mr. Davey, I see another contributing factor.

    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.”

    To me, Mr. Davey’s statement is a clear cut affirmation of the adversarial game being played here. He as much as states that the goal is not to arrive at the truth and a just outcome, but rather to hide the truth behind cleverly crafted statements or refusals to answer questions which he has a better chance of formulating than do the police officers. I see this adversarial model with winners and losers of the judicial game as a detriment to arriving at the truth and a just outcome.

    Many posters here have criticized public defenders for representing those who have committed heinous crimes. I am wondering whether anyone believes that the police should be afforded any better defense or more favorable interrogation conditions than should any member of the public facing charges of physical harm to another ?  If so, what is your rationale ?

    1. zaqzaq

      If I was a cop I would want as many protections as I could have when targeted by Holders politically motivated civil rights investigations to nowhere.  As for Davey’s comments every criminal defense attorney out there would tell their clients not to talk to the police if they were the targets of an investigation.  Remember that the defense attorney’s (public defender) job is not to arrive at the truth or a just outcome but rather to hide the truth behind deception, cleverly crafted statements or a refusal to cooperate in the investigation.  The defense attorney’s job is focused on limiting the liability that their client is exposed to regardless of guilt.  One of the most effective ways to do this is to not cooperate in the investigation.   This is one reason I was shocked when Darren Wilson testified in front of the grand jury.  The fact that four of the officers in the Gray case made statements would seem to support the notion that they believed that they did nothing wrong and had nothing to hide.   I am surprised that David is not asking for a restorative justice process here.

      1. David Greenwald

        “I am surprised that David is not asking for a restorative justice process here.”

        That’s ultimately what we did in Davis, so it’s not a bad idea.  However, I do think we need more transparency here first.

  2. Dave Hart

    With increasing militarization of police forces nationwide and the seeming inability to know how to make a simple apology, police departments will continue to have greater credibility problems regardless of legislation or laws.  This “white” guy’s post is becoming more commonplace and my own experiences and those of people I know are in accord:  http://www.dailykos.com/story/2014/08/26/1324819/-Cops-who-lie-the-erosion-of-trust-and-despair

    1. Frankly

      The performance of law enforcement is reflective of the job of law enforcement.

      Police departments do not have a credibility problem excpt for those that cause trouble and those that tend to dislike cops.

        1. Frankly

          In consideration of all the police departments across the nation, the question is do the recent amped up media attention to half a dozen events indicate that police in general have a credibiity problem?

          Now go back and read what I wrote.

          1. Don Shor

            Perhaps I misunderstood what you meant by “except for those that cause trouble.” Those who? Police? I assumed you meant activists.

        2. Frankly

          My point was that the “credibility problem” is largely a fabricated attack against law enforcement over a few incidents.  And that it is only those that cause trouble or those that tend to dislike or distrust police that are buying into it.   98% of police departments and 98% of police do a good enough job considering what that job is and requires.

          My other related point is that the performance of police is directly correlated with job of policing.  I see many complaining about the performance of law enforcement as either naive or disingenuous on this point.  The population of underclass has expanded greatly since the Great Recession and since politicians have failed to stop the flow of illegal immigrants flooding in.  We have always had ghettos with high crime, but it is much more violent and pervasive.

          It really irritates me when smart people argue from a position of lost perspective.  It is a common and unfortunate human malady that causes society to keep repeating the same mistakes constantly swinging to extremes.  In the 90s we were seeing crime increasing to the point of almost anarchy in some neighborhoods.  Think of that trending toward Mexico City level of crime.  Then we got tough on crime and move the needle back.  Now those upset that they are getting caught and those that tend to dislike and distrust law enforcement are complaining that the laws, and the performance of cops, is too tough.

          And if those people have their way we will again swing back to near anarchy in many inner city neighborhoods.

          If we really want to “fix” the problem we would help law enforcement by reducing the number of people behaving badly.  And we would reduce the number of people behaving badly by:

          1. Reforming public education so we have far fewer dropouts and more students able to achieve economic sufficiency.

          2. Reforming our regulatory, environmental, tax and economic policies to be much more friendly to business starts and expansion.

          3. Reform entitlements so more people have to work.

          4. Reform our immigration policy so we stop importing so many troublemakers and send more of them back.

          Basically, it is our failure on these things that has led to the job of law enforcement being so much more difficult.  And ironically it is generally those opposing work on the list above that are the most critical of law enforcement.  Hence my irritation with them.

  3. Miwok

    I was hooked by the subject and almost tuned out after paragraph one:

    1) Law enforcement bill of rights

    2) Teacher tenure, uh oh here we go rambling

    paragraph 3) Freddie Gray – really digressing now, here we go!

    THEN – it got back to the topic, and well discussed, thank you. I am really annoyed when a special class of people get an exemption from laws they pass, and in this topic, probably lots of other people have a different Bill of Rights than the rest of us.

    While Law Enforcement needs more scrutiny of their transgressions, supposed or otherwise, I think they need to have the same Bill of Rights, or let us have theirs.

    1. David Greenwald

      The Freddie Gray issue was where the Officer’s Bill of Rights issue arose this week and since I hadn’t covered Freddie Gray, I gave the background on that before getting back to the main issue.

  4. Davis Progressive

    the police certainly deserve due process rights, but the biggest protection for good police officers is transparency and trust.  i just think police hurt themselves by trying to suppress public information – more often than not they are vindicated by public disclosure.

    1. Frankly

      When police are tried and convicted in the court of public opinion that is driven by emotive impulses, politics and media hype… the trust deficit is the expectation that transparency will result in fair treatment.

        1. Frankly

          I don’t really agree with this.  I think law enforcement will be attacked and denegrated for each and every instance that provides those prone to attacking and denegrating law enforcement… no matter if the instance is uncovered from some investigation or video… or law enforcement goes into full and open disclosure mode.

  5. bchaidez

    My partner was hurt by a Davis Police Officer. He received a back injury and thank God that it wasn’t anything worse as to what happen with Mr. Gray. I pray for his family to find comfort for their loss! It sadness me to see how Police Officer’s are mistreating citizens across America, and to have personally experienced the injustice that occurred within my family has open my eyes to see Police Officers differently. I once believed that I could count on them if anything bad happens to my family or myself. I once believed that I can trust their motto, “To Protect and Service.” I catch myself pondering, when I see them driving around, “If something were to happen to me, would they help me? Would they help my children?” I hope that Mr. Gray family gets their questions answered truthfully and America see’s that its time to change the distrust among Police Officer’s and their community.

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