The Senate Judicial Proceedings Committee is set to hear its last two police accountability bills Thursday afternoon, both aimed at tackling the Law Enforcement Officers’ Bill of Rights: One looking to reform; the other, to repeal.
“Other than a desire [by law enforcement] to be placed on a pedestal, far above the people and far above the reach of law, there is no justification for it,” Sen. Jill P. Carter (D-Baltimore City) said.
Maryland is one of 16 states to still have the Law Enforcement Officers’ Bill of Rights on the books.
Carter, the sponsor of both bills, told Maryland Matters in a phone interview Thursday morning that this isn’t her first crack at making substantial changes to the statute.
Her bill, ultimately, gained very little traction. But, following Gray’s death, legislation was ushered through and enacted in 2016 that Carter asserts made “cosmetic changes,” to the law — “much because of [the legislature’s] extreme deference to law enforcement as an institution,” she said.
At Tuesday’s bill hearing, Carter said that she has sponsored over 30 police reform bills between 2013 and 2020, but that only two have passed.
“I want to make it clear that [the] bills didn’t die — they were not voted down. They were simply not given a vote,” Carter told Maryland Matters. “That is so completely unacceptable.”
Between 2013 and 2019, 138 civilians have been killed by Maryland police officers.
Since the death of George Floyd at the hands of Minneapolis police officers in May, protesters and activists across the state have cried out for lawmakers to defund police departments and repeal the Law Enforcement Officers’ Bill of Rights. But what exactly does it do?
In short, it provides due process protections for officers during investigations that could result in demotion or dismissal and lays out a uniform procedure for misconduct investigations across the state’s 148 police departments, preempting local laws.
While police reform advocates have continuously called for its abolition, law enforcement representatives fear what could happen should it be struck down.
Charles County Sheriff Troy Berry (D) told members of the House Workgroup to Address Police Reform and Accountability in Maryland last month that he’s concerned about what disciplinary procedure across departments would look like should the law be effectively repealed.
“If we take away the Law Enforcement Officers’ Bill of Rights where it stands, I don’t know what we’re moving towards,” he said.
Attorney Michael Davey is a former state police officer who represents dozens of police unions across the state. Both he and Berry have served on expert panels during the first two days of the Judicial Proceedings Committee bill hearings.
Davey told House lawmakers last month that, should the law be repealed, police would still have due process rights under the constitution. But that the General Assembly would have minimal control over Maryland’s 148 law enforcement agencies’ varying departmental practices.
“If the LEOBR was repealed, there would be due process rights for law enforcement officers consistent with the civil service policies of each jurisdiction, so everyone would have their own policy based on the civil service policies that their jurisdiction has,” he said at the same workgroup meeting. “It would not be a straight state policy, it would be whatever the whatever is in place at that jurisdiction.”
Carter, a champion of police reform, says it’s time for a change.
“It is my belief that we must not have separate statutes for them with special privileges,” she said Thursday. “They should be subject to the same laws and the same rule and the same due process as every other public employee.”
Who does LEOBR protect?
The current LEOBR safeguards officers across a variety of state organizations, including:
- The Department of State Police;
- Baltimore City Police Department, School Police Force, Housing Authority and Watershed police forces;
- County, bicounty and municipal police agencies;
- County sheriff’s departments;
- Law enforcement for the Department of Natural Resources, the Maryland Transportation Authority, the State Fire Marshal’s office, the Field Enforcement Bureau of the Comptroller’s Office, the Department of Health and Mental Hygiene, the Department of General Services and the Department of Labor, Licensing, and Regulation; and
- Police forces for Morgan State University, Baltimore City Community College, Hagerstown Community College and higher education institutions under the University System of Maryland.
How does it affect investigations?
For misconduct allegations filed against a law enforcement officer to be investigated, a formal complaint must be signed by the subject of the offense, a member of their immediate family or a bystander on the scene who observed or recorded the incident. If the allegations involve misconduct against a child, their guardian must sign the complaint on their behalf.
To conduct an internal affairs investigation, complaints must be submitted within one year and one day of the incident.
Barring allegations of excessive force or criminal activity, law enforcement agencies must bring administrative charges within one year after the episode is brought to the attention of department officials.
Before starting the investigation, the officer accused of misconduct is informed in writing and told the name, rank and command of the officers who will be probing the complaint and interrogating them.
If the officer is likely to be arrested, they are made aware of their rights prior to their interrogation. During questioning, an officer’s legal counsel can ask for a recess and object to any question.
All officers are permitted to have lawyers present during questioning. Unless they waive their right to representation, officers can delay interrogations for up to five business days while they seek legal counsel.
If allegations are serious enough, officers may be questioned immediately. Otherwise, the interrogation will take place “at a reasonable hour, preferably when the law enforcement officer is on duty.”
Additionally, officers may be asked to complete alcohol and drug screenings or polygraph tests. The findings of any of these examinations are not admissible in any criminal case. Polygraph results can’t be used in the officer’s administrative hearing unless the officer and their agency consent to its admission.
Records of all interrogations are to be either written, taped or transcribed and a copy made available 10 days before the officer’s administrative hearing. Additionally, officers are to be made aware of all witnesses, pending charges and given a copy of their investigatory file, so long as they sign a confidentiality agreement prohibiting them from disclosing any information and pay for the cost of the reproduction of their files.
What about administrative hearings?
If an investigation leads to a recommendation for dismissal, demotion, reassignment, transfer or pay cut, officers are entitled to appear in front of a hearing board before any action is taken unless they are convicted on felony charges.
These hearings are generally open to the public.
Hearing boards are made up of three law enforcement officers who typically are appointed by the agency’s chief and include one officer of the same rank as the officer facing punitive action.
Officers who sit on the hearing board cannot have taken part in the investigation or interrogation, and members of the hearing board can subpoena records and witnesses and may apply for an order to compel should sources refuse to comply.
Following Freddie Gray’s April 2015 death, the Law Enforcement Officers’ Bill of Rights was amended to require agencies to permit up to two civilians to sit as non-voting members on administrative hearing boards.
These individuals must have undergone training from the Maryland Police Training and Standards Commission on the ins and outs of the Law Enforcement Officers’ Bill of Rights.
At the first meeting of the House Workgroup To Address Police Reform and Accountability in June, Berry, the acting chairman of the Maryland Police Training and Standards Commission, told lawmakers that no civilians have undergone training or sat on a review board.
At a meeting of the same workgroup held late last month, Karen Kruger, an attorney for the Maryland police chiefs and sheriff’s associations, said she provided training to a group of civilians interested in participating on the Baltimore City Police Department’s hearing review board over the summer.
Kruger told lawmakers that chiefs have the ability to nominate citizens to these boards, but legislation approving their authority to appoint must be passed at a local level first.
During administrative hearings, both the law enforcement agency and the officer facing charges are entitled to legal representation. Both sides are given an opportunity to present evidence and argue their case.
Should the hearing board find the officer not guilty, the disciplinary action is terminated. If they are found guilty, the board will reconvene to consider the evidence, officer’s prior job performance and other factors before sending their penalty recommendation to the chief, who ultimately issues the final order. Their decision may be appealed.
The chief must decide the final order within 30 days of receiving the hearing board’s recommendation. Chiefs have the ability to increase the recommended penalty. Their decisions may be appealed to the circuit court.
Under the law, police chiefs also reserve the right to suspend officers with pay if they are awaiting the results of a criminal trial or a final decision from their hearing board. Officers can be suspended without pay if they’re charged with a felony.
For minor infractions, officers can opt to bypass the hearing board altogether and instead accept summary punishment, which, by law, cannot exceed a three-day suspension without pay or a $150 fine.
Summary punishment may be imposed if the facts of the incident are not challenged or the officer waives their right to a hearing. If an officer is offered summary punishment and refuses to take it, their chief can convene a hearing board, which can only recommend a penalty within summary punishment’s defined penalties.
Under the Law Enforcement Officers’ Bill of Rights, police can have formal complaints expunged from their records if they were unfounded or unsustained, if the officer was exonerated, or if it’s been at least three years since the final disposition.
How could reform look?
While Carter’s preference is for “absolute repeal,” she has introduced reform legislation with the understanding that her colleagues may not be ready to strike the law down in its entirety.
“Keeping in mind the legislative body’s resistance to that concept,” she said, “I feel that there are certainly substantive changes that we can make to the current Law Enforcement Officers’ Bill of Rights that will make it more palatable [and] make it less of an impediment to accountability.”
Under Carter’s drafted bill, the complaint process would no longer require complainants to sign the document and swear under penalty of perjury, allow proxies to file complaints on their behalf and extend the filing deadline from 366 days to three years.
Civilian law enforcement employees would be allowed to serve as the investigating or interrogating officer in misconduct probes. Investigating officers, similar to those who sit on review boards, would be granted the ability to subpoena witnesses and records.
The time police officers have to seek counsel before their interrogation would be reduced from five to three days and interrogations would be required to be video recorded and transcribed.
Carter explained that this and the other bills heard this week need to be workshopped “because we have to get this right,” she said, “we may not have another chance.”
She credits Senate President Bill Ferguson (D-Baltimore City) for the legislative body’s ability to begin these conversations. And while Carter doesn’t believe he wants a full repeal of the Law Enforcement Officers’ Bill of Rights, she thinks he truly wants the body to pass responsible legislation.
“As the President of the Senate, this would not be happening without President Ferguson believing this is a priority and something that we need to address very seriously now,” she said.
Carter called her fellow lawmakers’ disinterest in repeal “unfortunate.”
“What has been super troubling to me and what has actually broken my heart many times over, is the fact that … largely Black people who are very trusting of this system, very, very trusting of legislators — particularly Democrats — have come year after year, pleading their cases; pleading their humanity; pleading the humanity of their children to legislators; and it’s fallen on deaf ears,” she said. “We always claim that we’re here for the people and we’ve had so many laws and bills for people we care about, but it seems that when Black people are victims of police violence that’s the one group of people we can’t seem to muster any care for.”
Editor’s Note: This story was updated to reflect that 16 states, including Maryland, continue to have a Law Enforcement Officers’ Bill of Rights.