Report Title:

Law Enforcement Officers; Bill of Rights

Description:

Establishes the law enforcement officers' bill of rights.

THE SENATE

S.B. NO.

3017

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to law enforcement officers.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS

PART I. GENERAL PROVISIONS

§   -1 Policy statement. Law enforcement officers have a vital mission in society. This chapter is enacted because:

(1) Historically, law enforcement officers have not been afforded the full complement of constitutional and other protections provided to members of society; and

(2) The unique nature of the responsibilities associated with being a law enforcement officer, combined with the legitimate needs of a law enforcement agency to maintain an efficient and effective organization, require that law enforcement officers be afforded certain substantive, procedural, and remedial protections not afforded to members of society generally.

§   -2 Statutory construction. Any ambiguities within this chapter shall be resolved by providing a liberal interpretation to effectuate the policy statement in section   -1. Any conflict between this chapter and any other state law shall be resolved to give effect to this chapter, which supersedes all state law to the contrary. Similarly, this chapter preempts all county law.

§   -3 Administrative rules. A law enforcement agency may adopt administrative rules under chapter 91 necessary to implement this chapter.

§   -4 Definitions. When used in this chapter, unless the context otherwise requires:

"Administrative proceeding" means any nonjudicial hearing that is authorized to recommend, approve, or order the dismissal, demotion, suspension, reduction in salary, written reprimand, transfer, or reassignment.

"Aggrieved law enforcement officer" means a law enforcement officer whose rights as provided for under this chapter have been violated.

"Formal investigation" means the process of investigation ordered by a commanding officer during which the questioning of an officer is intended to gather evidence of misconduct that may be the basis for filing charges, which may result in dismissal, demotion, suspension, reduction in salary, written reprimand, transfer, or reassignment.

"Informal inquiry" means a meeting by supervisory or command personnel with an officer upon whom an allegation of misconduct has come to the attention of such supervisory or command personnel, the purpose of which is to mediate a citizen complaint or discuss the facts to determine whether a formal investigation should be commenced.

"Interrogation" means the questioning of an officer pursuant to the formal investigation procedures of the respective state agency or local governmental unit in connection with an alleged violation of such agency or department rule, regulation, or policy that may be the basis for filing charges seeking the officer's dismissal, demotion, suspension, reduction in salary, written reprimand, transfer, or reassignment.

"Law enforcement agency" means any state, county, or other governmental agency that has as its primary responsibility the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws including but not limited to all police departments and sheriff departments.

"Law enforcement officer" means a member of a law enforcement agency, either full-time or part-time, cadet or officer, probationary or nonprobationary, commissioned or noncommissioned, career or noncareer, tenured or nontenured, merit or nonmerit, paid or unpaid, who is serving in a position for which the primary responsibilities are the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws. A law enforcement officer position is usually indicated by formal training (regardless of whether the officer has yet completed or even been assigned to the training) and is usually accompanied by the power of arrest.

"Officer" means a law enforcement officer.

"Punitive personnel action" means punishment imposed as a result of a finding of guilt in a disciplinary hearing. The following personnel actions may be punitive, depending on whether instituted for the purpose of punishment or as sound, discretionary management decisions based on the legitimate needs of a law enforcement agency to maintain an efficient and effective organization:

(1) Dismissal from a law enforcement agency;

(2) Suspension from a law enforcement agency;

(3) Demotion in rank;

(4) Loss of base pay, leave pay, shift pay, bonus pay, overtime pay, sick leave, leave time, or work opportunity;

(5) Placement of adverse material in a law enforcement officer's record, including any temporary or permanent file relating to personnel, performance, promotion, or retirement matters; and

(6) Involuntary transfer or reassignment;

provided that these actions are nonpunitive as applied to a law enforcement officer with less than one year of service.

PART II. RIGHTS

§   -11 Generally. A law enforcement officer shall enjoy all of the rights, privileges, and protections afforded to members of society generally, regardless of whether the source is constitutional, statutory, regulatory, or otherwise. In no manner shall an officer be deemed to have fewer rights, privileges, or protections solely by virtue of the officer's status as an officer. This includes the right to exercise any privilege or protection without fear of threat, harassment, retaliation, or punitive personnel action.

§   -12 Bill of rights. Each law enforcement officer shall receive a copy of this bill of rights, as well as all subsequent amendments enacted by the legislature. Each officer shall receive a copy of all administrative rules adopted pursuant to this bill of rights. The rules, at a minimum, shall contain a description of all conduct subject to punitive personnel action and shall set forth the maximum punishment for each violation. An officer may waive any right provided by this bill of rights; provided that the waiver is in writing and contains the following language:

"WAIVER OF THE LAW ENFORCEMENT OFFICERS'

BILL OF RIGHTS

The Law Enforcement Officers' Bill of Rights is designed to provide the law enforcement officer with certain substantive, procedural, and remedial protections as afforded to members of society generally. A law enforcement officer is entitled to the full complement of all constitutional protections afforded to members of society, including but not limited to the fourth, fifth, and sixth amendments of the United States Constitution. You are strongly urged not to waive any protection afforded by this bill of rights unless an attorney or other knowledgeable individual representing your interest believes that a waiver of a given right is in your best interest. It is a violation of your rights for any individual to obtain or attempt to obtain a waiver from you by trickery, harassment, or threat.

I, __________________________, have read and considered the above paragraph concerning waiver of my rights under the Law Enforcement Officers' Bill of Rights. I have indicated my decision concerning waiver, this ___ day of _____, 200_, as follows:

(1) I refuse to waive any of my rights under the Law Enforcement Officers' Bill of Rights.

___________________________

Signature

(2) I do not waive all of my rights under the Law Enforcement Officers' Bill of Rights. However, I do waive the following rights, either designated by the section number or explained as follows: _________________________________________

________________________________________________________________

_____________________________

Signature

(3) I waive all of my rights under the Law Enforcement Officers' Bill of Rights.

_____________________________

Signature"

§   -13 Collective bargaining agreement. A law enforcement officer is entitled to all substantive and procedural benefits contained in a collective bargaining agreement. The negotiated rights may be used by an officer in lieu of or in addition to this bill of rights.

Notwithstanding any other provision to the contrary, a collective bargaining agreement may not waive or modify the constitutional rights identified in sections    -26 and    -28.

§   -14 Investigation of a law enforcement officer; conditions. When any public safety officer is under investigation and subjected to interrogation, by the officer's commanding officer, supervisor, or any other member of the employing law enforcement department or agency, that could lead to punitive personnel action, the interrogation shall be conducted under the following conditions:

(1) The interrogation shall take place at the facility to which the officer being investigated is assigned or works from;

(2) The interrogation shall be conducted at a reasonable hour, preferably at a time when the officer is on duty, or during the normal waking hours for the officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the officer being interrogated, the officer shall be compensated for any off-duty time in accordance with the officer's existing collective bargaining agreement or county or state law;

(3) The officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation. All questions directed to the officer under interrogation shall be asked by no more than two interrogators at any time;

(4) The interrogating session shall be for a reasonable duration, taking into consideration the gravity and complexity of the issue being investigated. The officer under interrogation shall be allowed reasonable periods for rest or to attend to the officer's personal physical necessities;

(5) The officer under interrogation shall not be subjected to professional or personal abuse, including offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogations may result in punitive action. No promise of reward shall be made as an inducement to answering any question; and

(6) No statement, admissions, or confessions obtained or made during any interrogation by an officer under duress, coercion, or threat of punitive personnel action, or not in accordance with this chapter, shall be admissible in any subsequent civil proceeding, criminal trial, or disciplinary proceeding against the officer, subject to the following qualifications:

(A) This paragraph shall not limit the use of statements made by an officer when the employing law enforcement department or agency is seeking civil sanctions against any officer, including disciplinary action;

(B) This paragraph shall not prevent the admissibility of statements made by the officer under interrogation in any civil action, including administrative actions, brought by the officer, or the officer's exclusive representative, arising out of a disciplinary action;

(C) This paragraph shall not prevent statements made by an officer under interrogation from being used to impeach the testimony of that officer after an on-camera review to determine whether the statements serve to impeach the testimony of the officer;

(D) This paragraph shall not otherwise prevent the admissibility of statements made by an officer under interrogation if that officer subsequently is deceased;

(E) The complete interrogation of an officer may be recorded. If a tape recording is made of the interrogation, the officer being interrogated shall have access to the tape. The officer shall be entitled without charge or undue delay to a transcribed copy of all recordings, any notes made by a stenographer, or to any reports or complaints made by investigators or other persons. The officer being interrogated shall have the right to bring the officer's own recording device and record any and all aspects of the interrogation;

(F) If prior to or during the interrogation of an officer, it is deemed that the officer may be charged with a criminal offense, the officer shall be immediately informed of the officer's constitutional rights. If the officer refuses to waive the officer's constitutional rights, the interrogation shall be ended;

(G) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at the officer's request, shall have the right to be represented by a representative of the officer's choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters. This subparagraph shall not apply to any interrogation of an officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other officer, nor shall this subparagraph apply to an investigation concerned solely and directly with alleged criminal activities involving an officer;

(H) If a collective bargaining agreement requires the presence of a representative of the collective bargaining unit during interrogations, the representative shall be present during the interrogation, unless this requirement is waived by the officer being interrogated. No waiver of representation shall be solicited by any investigator from the officer being interrogated once the interrogation has commenced; and

(I) No officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of the officer's department or agency would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.

§   -15 Free exercise of rights; punitive actions prohibited. (a) No law enforcement officer shall be subject to a punitive personnel action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, any existing administrative grievance procedure, an existing collective bargaining agreement, or for participation in a lawful activity with the officer's collective bargaining unit. Nothing in this section shall preclude a head of a police department or agency from ordering a law enforcement officer to cooperate with other agencies involved in criminal investigations. If an officer fails to comply with such an order, the department or agency may officially charge the officer with insubordination.

(b) A punitive personnel action or denial of promotion on grounds other than merit shall not be undertaken by any department or agency against any law enforcement officer who has successfully completed the probationary period that may be required by the officer's employing department or agency without providing the officer with an opportunity for administrative appeal.

(c) A punitive personnel action or denial of promotion on grounds other than merit shall not be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within ninety days of the department's or agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. If the department or agency determines that discipline may be taken, it shall complete its investigation and notify the law enforcement officer of its proposed disciplinary action within the ninety days allotted, except in any of the following circumstances:

(1) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the ninety day time period;

(2) If the law enforcement officer waives the ninety day time period in writing, the time period shall be tolled for the period of time specified in the written waiver;

(3) If the investigation is a multi-jurisdictional investigation that requires a reasonable extension for coordination of the involved agencies;

(4) If the investigation involves more than one officer and requires a reasonable extension;

(5) If the investigation involves an officer who is incapacitated or otherwise unavailable;

(6) If the investigation involves a matter in civil litigation where the law enforcement officer is named as a party defendant, the ninety day time period shall be tolled while that civil action is pending;

(7) If the investigation involves a matter in criminal litigation where the complainant is a criminal defendant, the ninety day time period shall be tolled during the period of the defendant's criminal investigation and prosecution;

(8) If a predisciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter; and

(9) If, after investigation and any predisciplinary response or procedure, the department or agency decides to impose a disciplinary action, the department or agency shall notify the law enforcement officer in writing of its decision to impose the disciplinary action, including the date that the disciplinary action will be imposed, within thirty days of its decision, except if the officer is unavailable for discipline.

For purposes of this section, "reasonable extension" means no more than thirty calendar days.

§   -16 Disciplinary actions; administrative appeal. (a) An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with, but not limited to, civil service rules and collective bargaining agreements.

(b) A disciplinary action shall not be imposed on a law enforcement officer prior to the execution of step 3 of the grievance appeal process, pursuant to a collective bargaining agreement.

§   -17 Personnel files; adverse comments. No law enforcement officer shall have any comment adverse to the officer's interest entered in the officer's personnel file, or any other file used for any personnel purposes by the officer's employer, without the officer having first read and signed the instrument containing the adverse comment indicating the officer is aware of the comment; except that the entry may be made if, after reading the instrument, the officer refuses to sign it, with at least two witnesses attesting to this refusal. If a law enforcement officer refuses to sign the instrument, that fact shall be noted on the document and signed or initialed by the officer and witnesses.

§   -18 Response to adverse comments; procedures. A law enforcement officer shall have thirty days within which to file a written response to any adverse comment entered in the officer's personnel file. The written response shall be attached to the adverse comment.

§   -19 Inspection of personnel files. (a) Each employer of a law enforcement officer, at reasonable times and at reasonable intervals during usual business hours, upon the request of a law enforcement officer, and with no loss of compensation to the officer, shall permit that officer to inspect personnel files that are used or have been used to determine that officer's qualifications for employment, promotion, additional compensation, termination, transfer, reassignment, or disciplinary action.

(b) Each employer shall keep each law enforcement officer's personnel file, or a true and correct copy thereof, and shall make the file or copy available to the officer within a reasonable period of time after the officer has made a request for the file.

(c) If, after examination of the officer's personnel file, the officer believes that any portion of the material is mistakenly or unlawfully placed in the file, the officer may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Any request made pursuant to this subsection shall include a statement by the officer describing the corrections or deletions from the personnel file requested and the reasons supporting those corrections or deletions. A statement pursuant to this subsection shall become part of the personnel file of the officer.

(d) Within thirty calendar days of receipt of a request made pursuant to subsection (c), the employer shall either grant the officer's request or notify the officer of the decision to refuse to grant the request. If the employer refuses to grant the request, in whole or in part, the employer shall state in writing the reasons for refusing the request, and that written statement shall become part of the personnel file of the officer.

§   -20 Lie detector; use on officers; when prohibited. (a) No law enforcement officer shall be asked, or be compelled, to submit to a lie detector test against the officer's will. No disciplinary action or other recrimination shall be taken against any officer refusing to submit to a lie detector test, nor shall any comment be entered anywhere in the investigator's notes or anywhere else that the officer refused to take, or did not take, a lie detector test, nor shall any testimony or evidence be admissible at a subsequent hearing, trial, or proceeding, judicial or administrative, to the effect that the officer refused to take, or was subjected to, a lie detector test.

(b) Nothing in this section shall prevent the employer from requiring applicants for employment in the department or agency from submitting to a lie detector test as part of the pre-employment background investigations.

(c) For the purpose of this section, "lie detector" means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

§   -21 Law enforcement officer's photograph or identity; prohibition on use. (a) No law enforcement officer shall be required, as a condition of employment by the officer's employing department or other public agency, to consent to the use of the officer's photograph or identity as a law enforcement officer for any purpose if that officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or the officer's family.

(b) Based upon the officer's reasonable belief that the disclosure of the officer's photograph or identity as a law enforcement officer as described in subsection (a) may result in a threat, harassment, intimidation, or harm, the officer may notify the department or other public agency to cease and desist from the disclosure. After the notification to cease and desist, the officer may seek an injunction prohibiting any official or unofficial use by the department or other public agency of the officer's photograph or identity as a law enforcement officer. The court shall impose a civil penalty awarded to the public safety officer in an amount not to exceed $1,000 per day, commencing one working day after the date of receipt of the notification made by the officer to cease and desist.

§   -22 Law enforcement officer's lockers; searches prohibited. No law enforcement officer shall have the officer's locker, or other space for storage that may be assigned to the officer, searched except in the officer's presence, with the officer's consent, or unless a valid search warrant has been obtained or where the officer has been notified that a search will be conducted.

§   -23 Retaliation by a department or agency against a law enforcement officer; prohibited. No law enforcement officer shall be discharged, disciplined, demoted, denied promotion or seniority, transferred, reassigned, or otherwise discriminated against with regard to the officer's employment, or be threatened with any such treatment, as retaliation for or by reason of the officer's exercise of the rights granted by this chapter.

§   -24 Public record. (a) If a law enforcement officer files a petition for court intervention seeking remedy, injunctive, or other relief for a violation of this chapter, the court shall take judicial notice that the officer has waived any existing confidentiality laws or agreements that may be in place or afforded to the officer with regard to the matter before the court, and as such, the matter before the court shall be deemed to be public record, unless superseded by law or court order.

(b) Any law enforcement department or agency that is a party or defendant to a court action shall have been declared by the court to have waived any confidentiality laws or agreements that may be in place or afforded the department or agency with regard to the matter before the court, and as such, the matter before the court shall be deemed to be public record, unless superseded by law or court order.

§   -25 Mutual aid; chapter application. Nothing in this chapter shall in any way be construed to limit the use of any law enforcement department or agency or any law enforcement officer in the fulfilling of mutual aid agreements with other jurisdictions or agencies, nor shall this chapter be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the department or agency involved.

§   -26 Political activity and other first amendment interests. (a) A law enforcement officer, when off-duty and when not acting in an official capacity, shall enjoy the same right to engage in political activity and the same freedoms of speech, expression, and association afforded to members of society generally, subject to reasonable regulation by a law enforcement agency with regard to association with known felons.

(b) A law enforcement officer, when on-duty and when acting in an official capacity, shall not engage or be forced to engage in any political activity.

§   -27 Right of nondisclosure. A law enforcement officer shall not be required to disclose any personal, family, or financial information relating to the officer or any member of the officer's family or household, subject to reasonable regulation by a law enforcement agency with regard to the mental and physical capabilities necessary to perform as an officer.

§   -28 Fourth, fifth, and sixth amendments. A law enforcement officer shall enjoy the full complement of all constitutional protections afforded to members of society generally by the fourth, fifth, and sixth amendments to the United States Constitution, as made applicable to the states through the due process clause of the fourteenth amendment.

§   -29 American flag; prohibition on punitive action. Notwithstanding any other law to the contrary, the employer of a law enforcement officer shall not take any punitive or adverse action against an officer for wearing a pin or displaying any other item containing the American flag.

§   -30 Due process of law. A law enforcement officer shall be afforded due process of law. In determining due process rights, an officer's position of employment shall be deemed a property interest, protected by the due process clause of the fourteenth amendment, once the officer has successfully completed all training and probationary periods, but in no event later than two years after the commencement of service as an officer.

§   -31 Civil remedies. (a) Any law enforcement agency, or personnel or agent thereof, that fails to comply with any provision of this chapter shall be liable to the aggrieved law enforcement officer in an amount equal to the sum of any actual damages sustained by the aggrieved law enforcement officer.

(b) Any law enforcement agency, or personnel or agent thereof, that fails to comply with any provision of this chapter shall be liable to the aggrieved law enforcement officer for punitive damages, as determined by the court, in addition to any actual damages provided for in subsection (a).

(c) Whenever a law enforcement agency, its personnel, or its agent fails to comply with any provision of this chapter, an aggrieved law enforcement officer may institute a civil action for injunctive relief, including an application for a permanent or temporary injunction, restraining order, or other action.

(d) In any successful action for damages or injunctive relief, the costs of the action, together with reasonable attorney's fees, as determined by the court, shall be added to any damages or relief awarded by the court under subsections (a), (b), and (c).

(e) If the court finds that a bad faith or frivolous action or a filing for an improper purpose has been brought pursuant to this chapter, the court may order sanctions against the party filing the action, the party's attorney, or both. Those sanctions may include, but are not limited to, reasonable expenses, including attorney's fees, incurred by the party, as the court deems appropriate. Nothing in this subsection is intended to subject actions or filings under this section to rules or standards that are different from those applicable to other civil actions or filings.

(f) A person may be held liable for any act or action for which a law enforcement department or agency is liable under this section if those acts or actions are deemed to be malicious on the part of the person.

For purposes of this subsection, "malicious" means, having knowledge that the action being taken against the officer was unlawful, illegal, or in violation of civil service rules, current collective bargaining agreements, or department or agency rules, regulations, or policies.

(g) No supervisor, administrator, executive, member of the employing public safety department, agency, or person may use the defense of "just following orders, or I was ordered, or similar statements" to negate individual liability.

(h) Any action under this chapter shall be brought within one year from the last date of the occurrence of any violation or within one year from the date on which the aggrieved law enforcement officer learned, or should have learned, of the violation.

(i) In addition to the civil remedies under subsections (a), (b), and (c), an aggrieved law enforcement officer shall have the right to seek other remedies or pursue other causes of action that are available to the officer under the constitution, statutes, rules, collective bargaining agreement, and otherwise."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________