The protests of recent weeks have brought to the top of the public agenda the need to quickly remove police officers who commit serious misconduct. When the Maryland General Assembly next convenes, its first priority should be to repeal the 1974 law that has long worked to insulate police misbehavior from consequences in our state, the so-called Law Enforcement Officers’ Bill of Rights (LEOBR).

LEOBR has figured as a factor in a succession of police controversies, including the death of Freddie Gray in police custody five years ago, the crimes committed by members of Baltimore’s Gun Trace Task Force and outcries over individual police uses of force around the state. In case after case, the law has made it harder for departments to investigate officer actions, harder to make charges stick, and harder for the public to learn what is happening. LEOBR by design reinforces the blue wall of silence under which good cops are pressured to keep mum about the less good.

Five years ago, following the Freddie Gray uproar, there was a brief wave of interest in reform. But police unions launched a lobbying blitz, and critics settled for relatively modest changes that took effect in 2016.

In perhaps the most notable of those changes, the infamous waiting period before a department can interview the officers involved in an incident was reduced from 10 days to half that. That’s still only five business days, so expect a week to go by in practice for what is absurdly couched as a “cooling-off” period, dubbed by cynics as the “get your stories straight period.” When interviews finally do happen, of course, a union representative will by law be there to raise objections.

Here are some of the other problems with the law:

  • Investigations leading to discipline must be conducted by fellow officers, not some more independent actor. The one exception requires the governor to intervene personally, after which the Attorney General appoints an investigator.
  • Back in 2000, when proposals arose for a civilian review board in Frederick, claims of inconsistency with LEOBR torpedoed the idea, even though advocates had tried to tailor the specifics to comply with the law. LEOBR would likewise complicate, or rule out, efforts to conduct an independent investigation by bringing in outside figures, such as a retired judge or other dignitary, as is common practice in private organizations when things go wrong.
  • The law bans interview techniques that are common for the police themselves to use when interviewing civilian witnesses, such as the use of multiple interviewers. Job consequences must not be threatened. Investigations of many kinds of offenses may not be started once a year has past, no matter how damning the facts that may come to light later.
  • Needless to say, most of these privileges are enjoyed neither by ordinary citizens who get questioned by police, nor by ordinary employees whom their employers suspect of misconduct. If someone tries to tell you LEOBR is just there to guarantee cops the same rights everyone else gets, they’re talking through their hat.
  • LEOBR’s red tape harms the accuracy of investigations, too. The U.S. Department of Justice has repeatedly taken the view that cases in which an officer’s gun has been fired call for prompt interrogation, often on the spot and with officers interviewed separately. Preventing the coordinating of stories is just one reason. Memories are freshest in the immediate aftermath. Immediate interviews can alert investigators to physical evidence and witnesses that might be less available if sought a week later.
  • Under LEOBR, the chief of the department cannot order suspension or dismissal until after a hearing board does its work, reversing the arrangement often found elsewhere. That board must be comprised of police (see the pattern yet?) and must include a “peer officer” of the same rank as the accused (hello, peer pressure). There’s one exception in which the chief gets to bypass this process: when the officer has, literally, been convicted of a felony.
  • The law keeps a lid on information in which the public is legitimately interested. If the internal investigation doesn’t result in a finding of guilt, the rest of us (including, say, the family of someone who dies in custody) may never get to learn its details. Even authenticated complaints can be expunged after three years, frustrating attempts to identify patterns.

Since Maryland adopted its first-in-the-nation law in 1974, it has spread to 15 other states, causing problems along the way. Among states with their own versions of the law are Minnesota, where a video recorded George Floyd’s asphyxiation while in police custody, and Kentucky, where officers’ fatal shooting of Breonna Taylor in her Louisville apartment has sparked widespread outrage.

Now momentum is back. Senate Judicial Proceedings Chairman William C. Smith Jr. (D-Montgomery) has signaled that he wants to reconsider key elements of the law.

In a more startling development, first-term Del. Gabriel Acevero, a Montgomery County Democrat, says he was fired from his day job with MCGEO, the union that represents many Montgomery County public employees, for refusing to back off his legislative work on LEOBR reform and other police issues. MCGEO represents some law enforcement employees and has been an ally of the powerful Fraternal Order of Police (FOP).

Don’t let the focus slip this time. LEOBR is designed to result in impunity, and it should go.

Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

(18) comments

Wbader

Walter Olson’s broadside against the Law Enforcement Officers’ Bill of Rights

[“LEOBR”] is laden with falsities, inuendo and rhetoric.

Mr. Olson’s bald conclusory claim that the LEOBR “... has made it harder for departments to investigate officer actions, harder to make charges stick ...” is ridiculous. Fairness compels that officers not be penalized because an employer threw spaghetti

against a wall hoping it will “stick”. The standard of proof is the preponderance of evidence.

Mr Olson alleges, “[i]nvestigations ... may not be started once a year has past (sic) ....” Truth is that an agency “may not bring administrative charges against [an] officer unless the agency files the charges within 1 year after the act ... comes to the attention of the [employer]”. The “1-year limitation ... does not apply to charges that relate to criminal activity or excessive force.”

Mr. Olson avers that “under LEOBR, [a department] cannot order suspension or dismissal

until after a hearing board does its work ....” In fact, the LEOBR “does not prohibit emergency suspension” of any law enforcement officer.

The Claim that “[a hearing] board must be comprised of police ... and must include a “peer officer” of the same rank as the accused ... is fabricated. The LEOBR permits Boards without a peer officer and with a Board chair such as former U.S. District Court

Judge Alexander Williams, Chair of the Maryland Commission to Restore Trust in Policing.

Mr. Olson says “[w]hen interviews finally do happen, of course, a union representative will by law be there to raise objections.” Truth is there is absolutely nothing in the law requiring the presence of a “union representative”.

Mr. Olson believes that when an officer discharges a weapon she must be promptly interrogated. Hello U. S. Constitution. Any officer involved in a gun discharge has a

constitutional right to remain silent and never give a statement. “[P]olicemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity v. New Jersey, 385 U.S. 493, (1967). Officers who are witnesses to any incident may be interviewed promptly – the LEOBR does not apply to witness officers.

Police officers need and deserve fair, neutral, objective, and impartial protections whenever an allegation puts them and their children in jeopardy of loss of their home, reputation, health benefits and security. We owe it to our officers to protect their rights and well-being.

olefool

If you're unhappy with law enforcement officer's, don't break the laws.

bosco

And if you do have an encounter with law enforcement, show some respect, don't cop an attitude, and obey their orders. Everybody goes home safely that way.

[ninja]

KellyAlzan

Ive had encounter with police. where I was just going about my day. And one of them cop an attitude from the beginning. It works both ways. Had I done something wrong, that's one thing. But since I didn't do anything wrong, its a whole other issue.

DickD

Walt, being a police officer is not easy. What we don't want is any police that act as judge, jury and executioner. Wording will be tough.

truck

So unfortunately a lot of the information listed here is incorrect. I encourage everyone to actually read the Law Enforcement Officer’s Bill of Rights in its entirety (it’s not that long)

https://law.justia.com/codes/maryland/2019/public-safety/title-3/subtitle-1/

LEOBR provides police officers some protections, but far les protection than a criminal accused of a crime. LEOBR is related to more than just misconduct. But, in cases of accused misconduct, LEOBR does not prohibit discipline of accountability of police officers. Police officers can be immediately suspended, but they may not be summarily fired without due process. More often then not police officers are assumed guilty and must prove themselves innocent.

Also, Did you know police departments can completely change directives (general orders) and make them immediately effective without training officers on the new policy? Then they hold discipline officers for not following the changes policy. LEOBR is in place to offer an appeal and minimal protections to police for many different reasons.

Police officers CAN be ordered to answer questions in an investigation, failing to do so can result in disciplinary action.

The list goes on. Before making assumptions throughly educate yourself. The overwhelming majority of police contacts are handled exceptionally by the police. Those that know police officers or are police officers understand that.

Instead of insisting LEOBR needs to change how about we change the news media. Their reporting should be fair, unbiased and actually provide accurate information and statistics that would disprove the “anti police” theme. Or how about Politicians hold themselves accountable and to a higher standard?

Sincerely,

The President of FOP Lodge 117 INC.

public-redux

As far as I can tell, there is only item in the column that you have disputed: whether or not an officer can be immediately suspended. What else in the column is incorrect?

truck

Did you take the time to read the actual LEOBR as it currently stands?

“ . In case after case, the law has made it harder for departments to investigate officer actions, harder to make charges stick, and harder for the public to learn what is happening. LEOBR by design reinforces the blue wall of silence under which good cops are pressured to keep mum about the less good.”

The above is incorrect. Also, Having an officer of the same rank on a hearing board related is not “peer pressure” it’s about equity and officers of the same rank typically have similar duties. A lot of hearing boards consist of high ranking officers and in most jurisdictions the officer has no say in the board members.’

If an individual files a complaint about a police officer then that individual will be notified of the results of the investigation, it is not keep secret.

As far as expungement of records:

MD Pub Safety Code § 3-110 (2019)

(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.

If any person is accused of a misdemeanor crime they can only be charged for that crime a year and one day from the date of offense.

There is factually correct information in the writer’s column, but there is also numerous assumptions and inaccurate information.

public-redux

“Did you take the time to read the actual LEOBR as it currently stands?“

I asked you to back up your unsubstantiated claim.

Wbader

There are several false or misleading statements in Mr Olson’s letter. First, be clear that LEOBR is an employer-employee Administrative process. Officers involved in shootings have full constitutional rights, including the rights to remain silent and to counsel. Read my comments above. (For example, LEOBR does not require presence of “union” representative; allows for agreement to have board without “peer” officer; allows for a retired judge or other person to chair hearing boards, etc. )

PurplePickles

Do we really need police? Do we really? I guess if you are white and are afraid of black people then sure we need cops. So white Karen's have a way to terrorize black people.

When Breonna Taylor was murdered, that night as they were leading her boyfriend Kenneth Walker out of the apartment there were people from Internal Affairs wanting to speak with him, not the cops, but with him. Why if not to help the officers get their "stories" straight. Why are they trying to interview a distraught man? Why wasn't Internal Affairs talking to the cops first? They wanted to make sure the cops were not held accountable.

Cops have a sweet deal as one can read about above, one sweet deal we have allowed to continue because we think we need the cops, but do we really need the cops? Do we really need cops like the ones who murdered George Floyd or the ones that murdered Breonna Taylor in her own apartment? Do we need cops like that?

I would like to see the concepts of "cops' re imagined into something that we are able to hold accountable, something that isn't used as a threat against black people, something that when we call them we aren't going to worry that when they pull up they don't shot a little black boy that was playing with a toy gun because we was just being a little boy. you know Tamir Rice.

I want cops that don't shoot little boys.

DickD

We want the same, purple, but we do need police, Black people need them too and Whites need police for other reasons than fear of Blacks - even if that is true and it certainly isn't true that Whites fear all Blacks. Some, yes, some Whites too.

bosco

It's a simple question to me, law enforcement or anarchy? A few bad cops do not represent all of law enforcement any more than a Black criminal represents all Balck people. What sort of response do you want should you need to dial 911, law enforcement or a dial tone?

Purple, I suggest you contact the your local police department and ask about a citizen ride-along.

[ninja]

gabrielshorn2013

Purple, I am assuming that your initial question "Do we really need police? was merely rhetorical, and you weren't being serious. If the world was perfect, and everyone minded their own business, didn't rob or steal, didn't commit assault, rape, or murder, didn't commit traffic violations, then no, we wouldn't need police, because everyone would have perfect behavior. That is Utopia. Of course we need the police because people don't have prefect behavior. There must be protections when performing their legally mandated duties. The same goes for elected officials when performing their duties. Nobody in their right mind would ever take the job if anybody with a beef could sue them in both criminal and civil courts for any imagined slight. Yes, there are some bad cops, so lets get rid of them. The vast majority of cops are good and honorable men ans women.

KR999

It wasn't a cop that shot the little 11 year old boy at the block party down in DC when he went for his mother's phone charger recently.

phydeaux994

We need the Police. The vast majority of Policemen do their difficult jobs quietly, fairly, and with methods necessary to control a suspect within reasonable constraints. But they can’t be given a free pass if they do things beyond reasonable need to subdue a suspect. They should be subject to punishment if they do.

gdunn

terrible idea.

public-redux

Because..?

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