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The problem with a cops’ bill of rights

Law Enforcement Officers’ Bills of Rights (LEOBORs) came into general use in the 1970’s.  Police departments had come under scrutiny in the 1960s as part of the civil rights movement.  Many police officers were investigated, and the police unions worked hard to ensure that those officers were treated fairly. Some states adopted LEOBORS in their constitutions for the protection of their police officers, and many more such protections were included in contracts between police unions and the cities where they were employed.

In the state of Washington, police enjoy additional legal protection beyond the LEOBOR – a police officer in Washington cannot be prosecuted for killing a citizen unless it can be proved they acted out of malice. As this subjective test cannot be proven, in effect police officers can’t be prosecuted. (An attempt to remove this threshhold test was defeated in the legislature last year.)

Even without the malice clause, however, LEOBORs offer the police protection against any effort to hold them accountable.

The city of Olympia has a version of the LEOBOR.  You can find it in Appendix D of the contract between the City of Olympia and the Olympia Police Guild.  There are sixteen provisions. This article won’t examine all of them; they are not all controversial.  For example, no one would say a cop should not be given written notice of an investigation, or of the outcome of the investigation.

Olympia’s version actually avoids several problematic provisions.  One common provision in LEOBORs across the nation says police may not be forced to answer questions in an internal investigation (5th Amendment protection).

Our local LEOBOR makes a distinction for an internal supervisory investigation: In such an investigation, a failure to answer a question is punishable by dismissal.  The officer is an employee, entrusted with power over other citizens’ lives. Failing to answer means failing to give a reasonable basis for such trust.

In a criminal investigation, the cop is protected by the 5th amendment.  He-or-she should not be exposed to jail for something only he-or-she knows about, something that would not be in evidence if they didn’t speak, any more than any other citizen.  That’s our common right.

If the internal supervisory investigation bleeds over into a criminal investigation, the officer’s statements will not be passed on.  This seems like a valuable distinction.  So in this case, our LEOBOR holds up as reasonable and fair.

There are a few other common pitfalls that Olympia’s LEOBOR avoids.  It does not require that any accused officer be interrogated only by other sworn officers, as in Maryland. That provision makes it impossible to use a Citizens’ Review Board.  Again, some LEOBARs require an investigation be expunged from the officer’s records after a time, but Olympia’s requires retention. Indefinitely.

The Olympia version, however, does contain a specific controversial provision, which is that a police officer cannot be required to submit to an investigation immediately after an incident.  In our case, officers have 48 hours to collect their thoughts and find legal counsel.   (Ed note: In the May 21, 2015 police shooting in Olympia, Officer Ryan Donald was not interviewed until five days later — May 26 — in the office of his attorney. By that time Donald had prepared a 10-page narrative justifying every action he took during the 3-minute incident.) Additionally, the police union (the accused officer’s counsel) must have access to any evidence collected by the investigatory team.

As the Public Interest Law Journal (PILJ) notes, no investigator or prosecutor would ever hold back for 48 hours in the case of a civilian suspect, especially if the suspect were free to consult with other suspects in that time or to review the city’s case against them.  To get at the truth, we need unvarnished recollections, without rehearsal or collusion.  The PILJ recommends that the investigation be immediate, or if 24 hours is granted for him-or-her to get a lawyer, they should be sequestered for that time.

HuffPost comments that officers might give false exculpatory statements if forced to speak without having had an opportunity to examine evidence. Such false statements could be a basis for conviction after the forensic evidence was presented.

When a LEOBAR offers significant prep time for an officer involved in an incident or accused of a crime, it can serve to impede arriving at the truth, and result in an abusive officer remaining on the force, putting citizens at risk.

The problem crops up in citizen trials as well as the trials of police officers.  Citizens on trial often testify to the behavior of an officer, including accusations of undue use of force as part of their defense.

The citizen in these trials may come off as less prepared and less confident than the police officer testifying against him-or-her.  The superior preparation of the police officer gives them that confidence.  In citizen trials, the police officer can take the time he-or-she needs to prepare before the trial as a matter of course, so it’s not because of the LEOBOR.   But the LEOBOR enshrines that right to preparation in a contract, and makes it even harder to question.

Equal treatment of the accused, whether it is a police officer or a citizen, should be the standard. The authors of the PILJ article argue that it’s best that both give testimony untainted by knowledge of other people’s testimony or of the forensic evidence.  The next time the Police Union’s contract is negotiated, the city should remedy this inequality.  As the employers of the police, the citizens of Olympia can and should insist on this.

This article is largely based on data from the article “An Impediment to Police Accountability?” in  the Public Interest Law Journal (PILJ) Vol 15 #2 but also includes thoughts and observations of the author.

Janet Jordan is a resident of Olympia and a Green Party member.  The Green Party has been following police accountability for several years. 

 

 

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