Carroll County FOP LODGE 20
359 Manchester Rd.
Westminster, MD 21157
The adoption of legislation creating a "bill of rights" for law enforcement officers has long been a top priority for the Grand Lodge.
Law enforcement officers arguably have one of the toughest jobs in the nation. They alone are charged with keeping the streets and neighborhoods of this country safe from crime. Every day, police officers put their lives on the line—life and death decisions are in the job description. Because of the enormous responsibility that comes with a badge, law enforcement officers are held to a much higher standard of personal and professional conduct—as well they should be. This higher standard and increased visibility renders police officers vulnerable to false accusations from the criminal element and others in society whose sole motivation in making these allegations is to disrupt law enforcement activities.
The legal protections afforded all citizens, including suspects and convicted criminals, from illegal and improper police procedures are provided by the U.S. Constitution as well as Federal and State statutes. Moreover, most law enforcement agencies also implement a wide array of departmental procedures that govern the conduct of their officers during traditional police activities. Unfortunately, rank-and-file police officers are sometimes subjected to abusive and improper procedures and conduct on the part of the very departments or agencies they serve. In some instances, the basic rights that most citizens or employees would take for granted are either denied or simply unavailable to police officers. In a startling number of jurisdictions throughout this country, law enforcement officers have no procedural or administrative protections whatsoever; in fact, they can be, and frequently are, summarily dismissed from their jobs without explanation. Officers who lose their careers due to administrative or political expediency almost always find it impossible to find new employment in public safety. An officer's reputation, once tarnished by accusation, is almost impossible to restore.
The need for a minimal level of procedural protections for police officers accused of administrative wrongdoing, the gravity of the potential harm to officers created by the lack of uniform safeguards, and the patently unfair disparity in rights afforded criminal suspects but not police officers are compelling reasons to enact this legislation. We need legislation to create a uniform minimal level of procedural due process for police officers and codify the core holdings of the U.S. Supreme Court in two landmark decisions: Garrity v. New Jersey (1967) and Gardner v. Broderick (1968). Both cases dealt with the exercise of Fifth Amendment rights against self-incrimination by public employees (police officers in both cases) when confronted with the threat of termination. These two decisions articulated a balanced approach between the legitimate exercise of constitutional rights by police officers and those of a law enforcement agency to maintain internal discipline. Taken together, the two rulings establish that, absent the provision of immunity to the police officers for their testimony, neither the testimony nor the assertion of the constitutional privilege against self-incrimination may serve as the basis for termination of employment.
Since the Court's pronouncements in Garrity and Gardner, the rights of police officers have been anything but secure. For one thing, the lower Federal courts have frequently misunderstood and misapplied the holdings of these two seminal decisions, creating a situation in which the rulings are consistently upheld while yielding inconsistent results. While many States have enacted statutes to address the rights of police officers, the cumulative result of these laws has been a confusing jumble with the "rights" protected sometimes dependent on either the classification or location of the officer involved. Further, some State statutes permit localities to "opt out" of the provisions guaranteeing public safety officers basic procedural protections. Federal legislation would establish a minimum level of procedural protections available while at the same time making the law on this issue unambiguous. The FOP is developing legislation, which would guarantee law enforcement officers the following basic rights:
The legislation also establishes an effective means for the receipt, review and investigation of public complaints against law enforcement officers that is fair and equitable to all parties.
The bill does not protect the jobs of "bad cops" or officers unfit for duty. Nor does it apply to allegations of minor violations of internal departmental rules or regulations or employment-related performance of officers, thus preserving the discretion of the individual agency in disciplining its employees. This measure does not afford police officers any greater rights than those possessed by other citizens; it simply reaffirms the existence of those rights in the unique context of the law enforcement community.
The FOP strongly supports the "State and Local Law Enforcement Discipline, Accountability and Due Process Act."
Links to More Information about this issue
U.S. Supreme Court's Decision in Garrity et al v. New Jersey (1967)
U.S. Supreme Court's Decision in Gardner v. Broderick (1968)
Section 3-101 – Definitions
(a) In this subtitle the following words have the meanings indicated.
(b) (1) “Chief” means the head of a law enforcement agency.
(2) “Chief” includes the officer designated by the head of a law enforcement agency.
(c) (1) “Hearing” means a proceeding during an investigation conducted by a hearing board to take testimony or receive other evidence.
(2) “Hearing” does not include an interrogation at which no testimony is taken under oath.
(d) “Hearing board” means a board that is authorized by the chief to hold a hearing on a complaint against a law enforcement officer.
(e) (1) “Law enforcement officer” means an individual who:
(i) in an official capacity is authorized by law to make arrests; and
(ii) is a member of one of the following law enforcement agencies:
1. the Department of State Police;
2. the Police Department of Baltimore City;
3. the Baltimore City School Police Force;
4. the Baltimore City Watershed Police Force;
5. the police department, bureau, or force of a county;
6. the police department, bureau, or force of a municipal corporation;
7. the office of the sheriff of a county;
8. the police department, bureau, or force of a bicounty agency;
9. the Maryland Transportation Authority Police;
10. the police forces of the Department of Transportation;
11. the police forces of the Department of Natural Resources;
12. the Field Enforcement Bureau of the Comptroller’s Office;
13. the Housing Authority of Baltimore City Police Force;
14. the Crofton Police Department;
15. the police force of the Department of Health and Mental Hygiene;
16. the police force of the Department of General Services;
17. the police force of the Department of Labor, Licensing, and Regulation;
18. the police forces of the University System of Maryland;
19. the police force of Morgan State University;
20. the office of State Fire Marshal;
21. the Ocean Pines Police Department;
22. the police force of the Baltimore City Community College; or
23. the police force of the Hagerstown Community College.
(2) “Law enforcement officer” does not include:
(i) an individual who serves at the pleasure of the Police Commissioner of Baltimore City;
(ii) an individual who serves at the pleasure of the appointing authority of a charter county;
(iii) the police chief of a municipal corporation;
(iv) an officer who is in probationary status on initial entry into the law enforcement agency except if an allegation of brutality in the execution of the officer’s duties is made;
(v) a Montgomery County fire and explosive investigator as defined in § 2–208.1 of the Criminal Procedure Article;
(vi) an Anne Arundel County or City of Annapolis fire and explosive investigator as defined in § 2–208.2 of the Criminal Procedure Article;
(vii) a Prince George’s County fire and explosive investigator as defined in § 2–208.3 of the Criminal Procedure Article;
(viii) a Worcester County fire and explosive investigator as defined in § 2–208.4 of the Criminal Procedure Article; or
(ix) a City of Hagerstown fire and explosive investigator as defined in § 2–208.5 of the Criminal Procedure Article.
Section 3-102- Effect of Subtitle
(a) The investigation or interrogation by a law enforcement agency of a law enforcement officer for a reason that may lead to disciplinary action, demotion, or dismissal shall be conducted in accordance with this section. (b) For purposes of this section, the investigating officer or interrogating officer shall be: (1) a sworn law enforcement officer; or (2) if requested by the Governor, the Attorney General or Attorney General’s designee. (c) (1) A complaint against a law enforcement officer that alleges brutality in the execution of the law enforcement officer’s duties may not be investigated unless the complaint is sworn to, before an official authorized to administer oaths, by: (i) the aggrieved individual; (ii) a member of the aggrieved individual’s immediate family; (iii) an individual with firsthand knowledge obtained because the individual was present at and observed the alleged incident; or (iv) the parent or guardian of the minor child, if the alleged incident involves a minor child. (2) Unless a complaint is filed within 90 days after the alleged brutality, an investigation that may lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken. (d) (1) The law enforcement officer under investigation shall be informed of the name, rank, and command of: (i) the law enforcement officer in charge of the investigation; (ii) the interrogating officer; and (iii) each individual present during an interrogation. (2) Before an interrogation, the law enforcement officer under investigation shall be informed in writing of the nature of the investigation. (e) If the law enforcement officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, the law enforcement officer shall be informed completely of all of the law enforcement officer’s rights before the interrogation begins. (f) Unless the seriousness of the investigation is of a degree that an immediate interrogation is required, the interrogation shall be conducted at a reasonable hour, preferably when the law enforcement officer is on duty. (g) (1) The interrogation shall take place: (i) at the office of the command of the investigating officer or at the office of the local precinct or police unit in which the incident allegedly occurred, as designated by the investigating officer; or (ii) at another reasonable and appropriate place. (2) The law enforcement officer under investigation may waive the right described in paragraph (1)(i) of this subsection. (h) (1) All questions directed to the law enforcement officer under interrogation shall be asked by and through one interrogating officer during any one session of interrogation consistent with paragraph (2) of this subsection. (2) Each session of interrogation shall: (i) be for a reasonable period; and (ii) allow for personal necessities and rest periods as reasonably necessary. (i) The law enforcement officer under interrogation may not be threatened with transfer, dismissal, or disciplinary action. (j) (1) (i) On request, the law enforcement officer under interrogation has the right to be represented by counsel or another responsible representative of the law enforcement officer’s choice who shall be present and available for consultation at all times during the interrogation. (ii) The law enforcement officer may waive the right described in subparagraph (i) of this paragraph. (2) (i) The interrogation shall be suspended for a period not exceeding 10 days until representation is obtained. (ii) Within that 10-day period, the chief for good cause shown may extend the period for obtaining representation. (3) During the interrogation, the law enforcement officer’s counsel or representative may: (i) request a recess at any time to consult with the law enforcement officer; (ii) object to any question posed; and (iii) state on the record outside the presence of the law enforcement officer the reason for the objection. (k) (1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer. (2) The record may be written, taped, or transcribed. (3) On completion of the investigation, and on request of the law enforcement officer under investigation or the law enforcement officer’s counsel or representative, a copy of the record of the interrogation shall be made available at least 10 days before a hearing. (l) (1) The law enforcement agency may order the law enforcement officer under investigation to submit to blood alcohol tests, blood, breath, or urine tests for controlled dangerous substances, polygraph examinations, or interrogations that specifically relate to the subject matter of the investigation. (2) If the law enforcement agency orders the law enforcement officer to submit to a test, examination, or interrogation described in paragraph (1) of this subsection and the law enforcement officer refuses to do so, the law enforcement agency may commence an action that may lead to a punitive measure as a result of the refusal. (3) If the law enforcement agency orders the law enforcement officer to submit to a test, examination, or interrogation described in paragraph (1) of this subsection, the results of the test, examination, or interrogation are not admissible or discoverable in a criminal proceeding against the law enforcement officer. (m) (1) If the law enforcement agency orders the law enforcement officer to submit to a polygraph examination, the results of the polygraph examination may not be used as evidence in an administrative hearing unless the law enforcement agency and the law enforcement officer agree to the admission of the results. (2) The law enforcement officer’s counsel or representative need not be present during the actual administration of a polygraph examination by a certified polygraph examiner if: (i) the questions to be asked are reviewed with the law enforcement officer or the counsel or representative before the administration of the examination; (ii) the counsel or representative is allowed to observe the administration of the examination; and (iii) a copy of the final report of the examination by the certified polygraph examiner is made available to the law enforcement officer or the counsel or representative within a reasonable time, not exceeding 10 days, after completion of the examination. (n) (1) On completion of an investigation and at least 10 days before a hearing, the law enforcement officer under investigation shall be: (i) notified of the name of each witness and of each charge and specification against the law enforcement officer; and (ii) provided with a copy of the investigatory file and any exculpatory information, if the law enforcement officer and the law enforcement officer’s representative agree to: 1. execute a confidentiality agreement with the law enforcement agency not to disclose any material contained in the investigatory file and exculpatory information for any purpose other than to defend the law enforcement officer; and 2. pay a reasonable charge for the cost of reproducing the material. (2) The law enforcement agency may exclude from the exculpatory information provided to a law enforcement officer under this subsection: (i) the identity of confidential sources; (ii) nonexculpatory information; and (iii) recommendations as to charges, disposition, or punishment. (o) (1) The law enforcement agency may not insert adverse material into a file of the law enforcement officer, except the file of the internal investigation or the intelligence division, unless the law enforcement officer has an opportunity to review, sign, receive a copy of, and comment in writing on the adverse material. (2) The law enforcement officer may waive the right described in paragraph (1) of this subsection.
(a) Subject to subsection (b) of this section, a law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.(b) The 1-year limitation of subsection (a) of this section does not apply to charges that relate to criminal activity or excessive force.
Section 3-107 -Hearing By A Hearing Board
Section 3-108 – Disposition Of Administrative Action
Section 3-109 – Judicial Review
(a) An appeal from a decision made under § 3-108 of this subtitle shall be taken to the circuit court for the county in accordance with Maryland Rule 7-202.(b) A party aggrieved by a decision of a court under this subtitle may appeal to the Court of Special Appeals.
Section 3-110 – Expungement Of Record Of Formal Complaint
(A) On written request, a law enforcement officer may have expunged from any file the record of a formal complaint made against the law enforcement officer if:
(1) (i) the law enforcement agency that investigated the complaint:
1. exonerated the law enforcement officer of all charges in the complaint; or
2. determined that the charges were unsustained or unfounded; or
(ii) a hearing board acquitted the law enforcement officer, dismissed the action, or made a finding of not guilty; and
(2) at least 3 years have passed since the final disposition by the law enforcement agency or hearing board.
(B)Evidence of a formal complaint against a law enforcement officer is not admissible in an administrative or judicial proceeding if the complaint resulted in an outcome listed in subsection (A) (1) of this section.
Section 3-111 – Summary Punishment
(a) This subtitle does not prohibit summary punishment by higher ranking law enforcement officers as designated by the chief.(b) (1) Summary punishment may be imposed for minor violations of law enforcement agency rules and regulations if:(i) the facts that constitute the minor violation are not in dispute;(ii) the law enforcement officer waives the hearing provided under this subtitle; and(iii) the law enforcement officer accepts the punishment imposed by the highest ranking law enforcement officer, or individual acting in that capacity, of the unit to which the law enforcement officer is attached.(2) Summary punishment imposed under this subsection may not exceed suspension of 3 days without pay or a fine of $150.(c) (1) If a law enforcement officer is offered summary punishment in accordance with subsection (b) of this section and refuses:(i) the chief may convene a hearing board of one or more members; and(ii) the hearing board has only the authority to recommend the sanctions provided in this section for summary punishment.(2) If a single member hearing board is convened:(i) the member need not be of the same rank as the law enforcement officer; but(ii) all other provisions of this subtitle apply.
Section 3-112 – Emergency Suspension
(a) This subtitle does not prohibit emergency suspension by higher ranking law enforcement officers as designated by the chief.(b) (1) The chief may impose emergency suspension with pay if it appears that the action is in the best interest of the public and the law enforcement agency.(2) If the law enforcement officer is suspended with pay, the chief may suspend the police powers of the law enforcement officer and reassign the law enforcement officer to restricted duties pending:(i) a determination by a court with respect to a criminal violation; or(ii) a final determination by a hearing board with respect to a law enforcement agency violation.(3) A law enforcement officer who is suspended under this subsection is entitled to a prompt hearing.(c) (1) If a law enforcement officer is charged with a felony, the chief may impose an emergency suspension of police powers without pay.(2) A law enforcement officer who is suspended under paragraph (1) of this subsection is entitled to a prompt hearing.
Section 3-113 – False Statment, Report Or Complaint
(a) A person may not knowingly make a false statement, report, or complaint during an investigation or proceeding conducted under this subtitle.(b) A person who violates this section is subject to the penalties of § 9-501 of the Criminal Law Article.