IMPACT OF THE LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS ON POLICE TRANSPARENCY & ACCOUNTABILITY

RICHARD DESHAY ELLIOTT

JOHNS HOPKINS UNIVERSITY, DEPARTMENT OF POLITICAL SCIENCE

Abstract

        The United States, home to 5% of the world’s population & 25% of the world’s incarcerated population, is the largest hotspot of mass incarceration in human history^[1]. Many factors have contributed to rising incarceration rates over the past 50 years, including the War on Drugs and the 1994 crime bill. One piece of legislation with  impact on policing in the United States is the Law Enforcement Officer’s Bill of Rights (LEOBOR)^[2], which serves to minimize accountability and transparency within police departments by granting rights to police officers that aren't granted to other public or private employees, such as interdepartmental investigations and classified personnel files. LEOBOR is state policy in the states where Freddie Gray (Maryland), Sandra Bland (Texas), Breonna Taylor (Kentucky), & George Floyd (Minnesota) were murdered by police and where Rodney King (California) was beaten on tape, and this legislation has a substantial impact on police investigations and discipline. There has been very little academic study on this legislation and its impact.

In this study, I seek to examine the difference in rates of incarceration, police spending, police salaries, on-duty shooting of civilians, the number of officers who have been charged for an on-duty shooting, and the number of decertified officers between states with and without LEOBOR in effect. These statistics will give a detailed comparison of accountability and transparency in states that do and do not have LEOBOR in effect.

Keywords: police accountability and transparency, police misconduct, police brutality, Joe Biden, American policing, Jill P. Carter, Gabriel Acevero, Law Enforcement Officers’ Bill of Rights, police unions
History of the Law Enforcement Officer’s Bill of Rights & Police Reforms
        Police reforms during the late 19th/early 20th century often took the form of police commissions. These programs were generally ineffective as they were filled by political appointees and deferential to police leadership^[3]. Precursors to the modern civilian review boards (CRBs) were created in major cities such as Washington D.C. and New York City from the 1920s to the 1960s, but all were ultimately dismantled due to resistance by police unions & local politicians and limited funding^[4]. During the 1960’s Civil Rights Movement, CRBs were a frequent demand among Black activists as many of the largest riots were sparked by incidents of police misconduct and police brutality. By the end of the decade, the CRBs in New York and Philadelphia had been dismantled. Through the 1970s and into the 1980’s, the push for CRBs continued and investigative agencies with more resources and greater responsibility such as the Public Review Commission in Berkeley, CA & the Office of Citizen Complaints in San Francisco, CA were created^[5]. By the mid-80’s, national associations such as the International Association for Civilian Oversight of Law Enforcement (IACOLE) and later the National Association for Citizen Oversight of Law Enforcement (NACOLE) were founded. By 2001, there were over 100 civilian review agencies and 144 by 2016^[6].

During this time period, police unions became a powerful political force. Dissatisfaction with internal police management practices was a central organizing focus for these unions^[7], and LEOBOR has often been their policy vehicle to represent the interests of rank and file police officers. Police unions have also pursued legislation to reduce access to personnel records and currently, only 12 states have public personnel records for police officers while 23 have confidential records and 15 have limited accessibility^[8]. A 2018 study of police disciplinary appeals argues that these serve as an underappreciated barrier to officer accountability and organizational reform, leading departments to rehire and significantly reduce disciplinary measures against officers that have engaged in serious misconduct^[9]. In Rushin’s analysis of 656 departments, his data shows that the vast majority of these departments give police officers the ability to appeal disciplinary sanctions through multiple levels of appellate review, creating a “formidable barrier to officer accountability”. According to an informal tally by attorney Will Aitchison, arbitrators in the U.S. have eased or reversed discipline in favor of police officers in about 60 percent of cases since the 1980s^[10]. LEOBOR, as described by the Grand Lodge of the Fraternal Order of Police, contains the components listed in Table 1^[11].

Table 1: Grand Lodge Fraternal Order of Police, LEOBOR Policy Components

LEOBOR has been introduced at both the state and federal level, and components have also been packaged into union contracts. The Federal Police Officers Bill of Rights was first introduced in the House of Representatives in 1971 by New York Congressman Mario Biaggi, with 120 co-sponsors. A former New York City police officer who was wounded 11 times on duty, Biaggi also founded the National Law Enforcement Officers Memorial Fund (NLEOMF) and served as Acting President of the Patrolmen's Benevolent Association (PBA). He introduced this bill several times on behalf of the PBA^[12], but the bill was not introduced in the Senate until the 1990s. Biaggi’s bill included a requirement for a Law Enforcement Officers Bill of Rights in every state to receive federal policing grants, alongside components 1, 2, 3, 4, 5, 6, 7, 8, & 10 of the Grand Lodge’s LEOBOR.

Vice President Joe Biden, the 2020 Democratic presidential nominee, introduced the Police Officers Bill of Rights Act of 1991 as Chair of the Senate Judiciary Committee, several weeks after an uprising in Los Angeles which followed the police beating of Rodney King^[13]. This bill passed 55-43^[14], but was not brought up for a vote in the House of Representatives. This bill was not introduced in both houses of Congress until 1995. The Biden bill, if passed, would have federally implemented components 1, 2, 3, 4, 6, 8, 9, and 10 and parts of component 5. Former New York City Police Commissioner Lee P. Brown argued that Biden’s bill would “erode advances that have been made in holding police officers and their supervisors accountable for the use of excessive force and other forms of misconduct.”^[15].

The Chair of the Legislative Committee of the International Association of Chiefs of Police appointed an Internal Affairs Legislation Subcommittee to draft a version of POBR law that management would find more acceptable, following the passage of LEOBOR at the state level in several states. Although there was no immediate intention to have the IACP version introduced in Congress, it would be available as a reference document in those states where POBR legislation might be pending. It should be noted that the final document, though unanimously approved by the subcommittee, was never adopted by the IACP Legislative Committee itself. Divided by a single vote difference, a majority of the full committee was so opposed to any POBR legislation that it rejected the adoption of a management version, even if it was labeled a “specimen” document^[16].

LEOBOR was first implemented in Maryland in 1974 and as of 2015, exists in 17 states^[17]. The legislation is not uniform: some states cover sheriffs, firefighters, police chiefs, corrections officers and parttime employees while others do not. Similar legislation passed in Alabama in 2001, but this legislation lacked provisions on investigations^[18]. Colorado amended its Professional Standards for police in 1990 with revisions and additions on internal investigations^[19]. Neither of these are counted as LEOBOR states in the findings. The Canadian Province of Alberta also passed LEOBOR in 1990^[20]. Rhode Island and Maryland are considered to be the state’s with the most police-friendly LEOBORs, holding provisions that officers convicted of a felony in Rhode Island or a misdemeanor in Maryland are not automatically fired^[21].

Table 2: States with LEOBOR, Chronicled by Year of Introduction & Components

At least 10 other states have had police unions attempt to enact LEOBOR in the past 30 years.

1. Hawaii, S.B. 2986 (21st Leg. 2002);
2. Kansas, S.B. 214 (77th Leg. 1997);
3. Massachusetts, H.B. 368 (182nd Leg. 1998);
4. Michigan, S.B. 25 (2001);
5. Montana, S.B. 44 (1993);
6. North Dakota, S.B. 2368 (57th Leg. 2001);
7. Pennsylvania, H.B. 376 (S. Res. 1073, 185th Leg. 2001);
8. South Carolina, H.B. 4498 (112th Leg., 1997 Sess.);
9. Utah, H.J.R. 9 §143 (54th Sess. 1999);
10. Washington, H.B. 1850 (54th Sess. 1995).

This legislation has been expanded in recent decades and written into union contracts to include corrections officers covered under a Corrections Officers Bill of Rights (COBR), such as officers at New York’s Attica Prison^[40] who have a union stipulation that they are only obligated to answer questions from their employers and at Baltimore City Detention Center^[41], where officers who were accused of smuggling contraband and sexual relationships with inmates were transferred to other facilities.

Recent incidents of police misconduct throughout the United States have sparked policy discussions around reforming/repealing LEOBOR. This year, over 60 organizations in Maryland have signed onto the American Civil Liberties Union (ACLU) of Maryland’s call for meaningful policing reforms, including a repeal of LEOBOR^[42], and former Baltimore Mayor Stephanie Rawlings-Blake blamed Maryland’s LEOBOR for delays in investigating the police murder of Freddie Gray in 2015^[43]. Officer Richard Pinheiro Jr. was convicted of fabricating evidence and misconduct, a misdemeanor, and was able to remain with the Baltimore Police Department (BPD)^[44]. BPD officials said that under Maryland law, the process for handling police misconduct was outside their control. Under Maryland’s LEOBOR, officers are not required to be automatically fired if they are convicted of a misdemeanor. The Delaware NAACP State Conference of Branches has called for the repeal of Delaware’s LEOBOR^[45], and the Rhode Island NAACP is currently on a commission to reform Rhode Island’s LEOBOR^[46].

Literature Review

AN IMPEDIMENT TO POLICE ACCOUNTABILITY? AN ANALYSIS OF STATUTORY LAW ENFORCEMENT OFFICERS’ BILLS OF RIGHTS provides a thorough analysis of the history of LEOBOR in the various states in which it has passed, the policy components, and the implications LEOBOR has for police accountability^[47] and was the primary source of information for this study.
        According to Keenan & Walker, few scholarly studies on the impact of LEOBOR have been conducted, and a 1998 study by Human Rights Watch included that “Police officers accused of human rights violations or other misconduct are often protected by special law enforcement officers’ ‘bill of rights,’ providing for specific protections for officers accused of misconduct.”^[48], but included no research on the bill of rights nor its impact on accountability. In their conclusion, Keenan & Walker list the following as potential impediments to police accountability:

1. language that sets the scope of the LEOBORs too broadly, such that it might apply to routine supervisory activities;
2. formal waiting periods that delay investigations;
3. prohibitions on the use of non-sworn investigators in misconduct investigations;
4. pre-disciplinary hearings that include rank-and-file officers on the hearing board;
5. statutes of limitations on the retention and use of data on officer misconduct.
6. the failure to allow for reasonable exceptions to provisions regulating the time, place, and manner of investigative interviews;
7. excessive limitations on how many officers can participate, how many can speak at one time, and the use of “foul” language;
8. requiring the disclosure of the names of complainant(s) in every case;
9. overly broad definitions of “personnel files,” to which officers have access and/or to which they can contribute;
10. very short statutes of limitations on prosecutions;
11. lack of emergency suspension provisions; &
12. the lack of protections for whistleblowers.

One of the few scholarly studies of LEOBOR was written for the 2005 Law Enforcement Executive Forum by Wayne Schmidt, Chair of Americans for Effective Law Enforcement Legal Center, and includes the International Association of Chiefs of Police version of LEOBOR^[49]. This report details the differences between this law in different states and includes policy to create a uniform, national LEOBOR with all 10 components of the Grand Lodge FOP’s model legislation.

        Another scholarly study on this topic is by University of Baltimore School of Law professor emeritus Byron L. Warnken, detailing his support for a national LEOBOR in 1997^[50].  Warnken argues:

“A national law enforcement officers’ bill of rights, like the one currently before Congress, would replace the ad hoc nature of many internal police investigations by encouraging states to provide minimum procedural standards to guide such investigations”. Warnken argues in support of components 1, 2, 3, 4, 5, 6, 7, & 8, stating:

“The bill of rights contained in these bills are exactly what law enforcement officers throughout the country deserve and desperately need. As evidenced by the examination of the current rights afforded to law enforcement officers during internal investigations, it is time for Congress to step in and ensure police officers there (sic) due process protections guaranteed to them under the Fourteenth Amendment.”
        

An April 2016 study conducted with the assistance of the United States Department of Justice studied existing records of all criminal arrests of police officers in the United States, a novel area of study^[51]. The researchers, using Google News, found 6,724 cases of police officers arrested between 2005 and 2011, a rate of 0.72 officers arrested per 1,000 officers and a rate of 1.7 officers arrested per 100,000 population nationwide, and that many of these crimes were occupationally-derived; for example, crimes that police officers had direct contact with such as narcotics officers who were caught selling drugs. According to their findings, nearly 40% of police crimes were committed while on-duty and over 67% of the arrests were made by an agency other than the employing agency, labeled a failure of internal control. Only 54% of officers lost their jobs as a result of conviction. According to the authors:

“The sheer number of police crimes directly contradicts the presumption that they are perpetrated by a small cadre of problem-prone officers; and, the fact that roughly two-thirds of all the cases originated from an arrest made by an agency other than the employing agency reveals that in at least some cases agencies are not aware of the crimes perpetrated by their own officers.”

Findings

        In this study, I have gathered data on each state’s:

• 2020 incarceration rate per 100,000^[52]
• 2017 state and local police budget per capita^[53]
• Average police salary^[54]
• Median salary^[55]
• Civilians shot by on-duty officers since 2015^[56]
• Black civilians shot by on-duty officers since 2015^[57]
• Latino civilians shot by on-duty officers since 2015^[58]
• Officers Charged for On-Duty Shootings since 2005^[59]
• Decertified police officers^[60]

        I have found the data for these metrics in all 50 states and Washington D.C. These statistics are included in Table 2 and the states with LEOBOR enacted are marked in bold..

        Table 3. Policing Statistics in the United States, State by State

* States with LEOBOR in place

States in bold have confidential police records

Conclusion

        The findings clearly indicate that there are substantially greater hurdles to police accountability and transparency in states with LEOBOR in effect. 3 of the 7 states that do not report their decertified officers are LEOBOR states (California, Delaware, and Rhode Island). States with LEOBOR, on average, have significantly higher incarceration rates and slightly higher police budgets. Only 17 states have LEOBOR in effect (33% of states, including D.C.) and these 17 states account for:

• 47.13% of the total population
• 54% of police shootings of civilians
• 51% of police shootings of Black civilians
• 80% of police shootings of Latino civilians
• 44% of police decertifications
• 43% of police officers charged for on-duty shootings

        Based on these statistics, it is apparent that LEOBOR is a detriment to police accountability and transparency to the general public, and allows police officers to avoid scrutiny for misconduct up to and including murder of civilians while on duty. This research could be further by investigating the personnel files of the officers who have been decertified to see if they continued policing and where they transferred/moved to. As Keenan & Walker suggest the removal or update of several LEOBOR components, I suggest a repeal of LEOBOR in all states and an end to special treatment and extra rights for police officers who are being investigated for misconduct. In particular, protections for whistleblowers, hearings conducted by CRBs and other civilian accountability organizations, and public access to personnel files are absolutely paramount to police accountability & transparency  and reducing incidents of police misconduct.

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