Lawmakers eye changes to police ‘bill of rights,’ cite need for oversight

The General Assembly appears poised this coming session to sharply alter – if not outright repeal – a 46-year-old law governing how police departments discipline wayward officers, amid criticism that the procedures are too protective of them and largely shielded from the public.

The 1974 Law Enforcement Officers’ Bill of Rights act enables departments to investigate police misconduct internally and generally prohibits leadership from firing misbehaving officers unless they have been convicted of committing a felony, though suspensions with or without pay are available in cases of lesser malfeasance.

LEOBR’s critics in the General Assembly say these civil service protections for police are greater than those afforded other public servants, who face termination for much less egregious offenses.

Supporters counter that police need the greater protection because they face harsher realities on the job and must often use force to protect the public and themselves, a high-risk task that must be performed without the delaying fear that their reasonable reflexive reactions could result in severe discipline.

But police officers receive “extra due process” under LEOBR, said Sen. William C. “Will” Smith Jr., chair of the Senate Judicial Proceedings Committee and a proponent of changing the law to permit greater public oversight.

“It’s a disciplinary process that has been an inhibitor to real transparency and accountability,” said Smith, D-Montgomery. “You want to give law enforcement no more, no less due process than any other civil servant.”

But Sen. Robert G. Cassilly, R-Harford, said police officers are unlike other civil servants in that they comprise a necessary “paramilitary” force “operating in high-stakes environments.”

“You can’t apply to the police force rules that apply to the assembly line,” added Cassilly, a member of the Senate Judicial Proceedings Committee.

Not a ‘bill of rights’

The impetus for greater public oversight of police discipline this coming legislative session was the May 25 death of George Floyd, an unarmed black man, at the knee of a Minneapolis police officer while other officers watched. Floyd’s death, recorded on video and widely shown on news broadcasts, prompted nationwide protests calling for police reform.

Amid this national concern about excessive police power, a state statute inartfully and inaccurately called the Law Enforcement Officers’ Bill of Rights has become ripe for scrutiny in the General Assembly, Cassilly said.

“It’s not a list of rights,” Cassilly said, referring to the law’s name. “It’s a list of procedures.”

The law simply sets forth the process for reviewing officers’ actions and disciplining them if deemed warranted, Cassilly added.

LEOBR calls for investigations of officers’ misconduct to be conducted by investigators within their departments.

The investigator will issue a report that either does or does not find sufficient evidence suggesting that the officer violated rules of conduct. That report goes to the chief, who makes a decision regarding discipline and serves it on the officer, who can either accept or reject the punishment.

If rejected, the officer’s case goes before a three-member hearing board of police department employees, one of whom must be the same rank as the officer. The burden of proof by a preponderance of the evidence rests with the administrative prosecutor.

If it finds against the officer, the board makes its own recommendation for discipline and submits it to the chief. If the chief concludes a greater punishment is warranted, the officer has a right to be heard.

If the officer objects to the final discipline, he or she may seek judicial review in the circuit court of the jurisdiction in which they live.

Potential legislation under consideration would make all police-related complaints — including investigative reports, hearing records and disciplinary decisions – subject to public disclosure; give internal investigators subpoena power; allow the public to attend all disciplinary hearings; and enable police chiefs to fire without an administrative hearing officers convicted of or who receive probation before judgment for misdemeanor assault or theft.

Due process

Clyde E. Boatwright, who heads the state’s police union, said Thursday that he hopes legislators carefully consider any changes to a law that for nearly 50 years has protected the public from bad officers while enabling fine officers to perform their high-risk jobs without fear of unwarranted discipline.

“We don’t want a rush to judgment that will negatively impact our profession,” said Boatwright, president of the Maryland Fraternal Order of Police. “We would like to maintain our due process rights.”

Sen. Jill P. Carter, who seeks LEOBR’s repeal, said greater community oversight of police disciplinary proceedings is needed because internal investigations serve to shield misbehaving officers.

“This system does not allow for real police accountability,” added Carter, a Baltimore Democrat and member of the Senate Judicial Proceedings Committee. “Law enforcement with integrity: That’s the goal here.”

Carter, who called for amending LEOBR a dozen years ago as a member of the House of Delegates, said replacing LEOBR with piecemeal changes is insufficient to ensure wayward officers are punished.

“Replace is not a prerequisite for repeal,” Carter said. “The general goal is to have officers treated as other public servants and the people they serve.”

House Judiciary Committee Vice Chair Vanessa E. Atterbeary agreed, saying LEOBR “should absolutely be repealed” as ineffective in warning citizens about and protecting them from bad police officers.

“It is used as a way to not hold officers accountable for their actions,” said Atterbeary, D-Howard. “We need accountability and transparency.”

Atterbeary said administrative proceedings regarding officer discipline must be conducted with civilian oversight and that the result of these proceedings — be it punishment or not – must be subject to public disclosure under the Maryland Public Information Act.

Del. Luke Clippinger, who chairs the House Judiciary Committee, said he predicts vibrant debate this session on LEOBR’s future.

“I think it’s very important for us to give people confidence in the way we address police misconduct,” said Clippinger, D-Baltimore City. “I think it’s vital that we give people confidence in public safety.”

With the General Assembly session nearing, union president Boatwright urged his fellow officers to redouble their efforts in lobbying and testifying in favor of retaining LEOBR.

“As you can clearly see, we are in the fight for our lives in this upcoming legislative session,” Boatwright wrote in a Nov. 25 letter posted on the union’s website.

“To have any success in avoiding a complete overhaul of the policing profession in Maryland we will have to explore using different strategies and changing the way we have operated in Annapolis in the past,” Boatwright added. “If we do not, the end result will be the loss of many of our rights, our due process, and our ability to effectively perform our jobs without fear of discipline or incarceration when making split second decisions while defending ourselves or others.”