Law enforcement officials and some of the police’s most fervent critics agreed during a four-hour state Senate hearing Thursday that the Law Enforcement Officers’ Bill of Rights needs to be changed. They disagreed, however, on the scope of the change.
The controversial Law Enforcement Officers' Bill of Rights, or LEOBR, governs police internal investigations and discipline. Critics say it gives too much protection to police who violate rules or even the law.
Thursday’s hearing before the Senate Judicial Proceedings Committee focused on two competing proposals, both sponsored by state Sen. Jill Carter, a Baltimore Democrat. One would repeal the law. The other would leave the law in place but make numerous changes.
Carter said she would prefer the complete repeal.
“The police exist because of the very people that they serve, and so they should not be on a pedestal above the people,” Carter said. “It's time for us to say as a matter of policy, we don't condone that process, that two-tier system any longer.”
Among the changes proposed if the law is left in place, complaints would no longer need to be made under oath and could be filed up to three years after an incident. Civilian police employees, not just officers, could conduct investigations. New administrative charging committees would decide an investigation’s outcome. Certain types of misconduct could not be expunged from an officer’s record, and misconduct eligible for expungement would need to remain on an officer’s record for at least five years, up from the current three. And records related to complaints that an officer committed misconduct while on the job would be public record.
“They’re public servants, and their disciplinary findings should not be shrouded in secrecy,” Carter said.
Many at the hearing agreed with Carter that the LEOBR needs to be repealed.
“Law enforcement officers deserve due process when facing discipline like any other public employee, but the LEOBR is not due process,” said David Rocah, senior staff attorney with the ACLU of Maryland. “It is special rights for police officers, and it has to end.”
Misconduct investigations into police should mirror similar investigations into other government employees, Rocah said.
Baltimore State’s Attorney Marilyn Mosby said the LEOBR makes prosecuting officers for crimes more difficult. The law also makes it more difficult for the Baltimore Police commissioner to fire those officers who are convicted.
“There are officers currently on Baltimore Police Department's payroll despite being incarcerated, convicted of misconduct, excessive force and other criminal behaviors,” Mosby said. “LEOBR has tied the hands of our police commissioner over the years, and I can tell you, I know from firsthand experience — I've worked with five of them — and not having the autonomy to exercise your discretion to get rid of bad apples spoiling the bunch is the biggest issue.”
On the other side of the issue, Karen Kruger, a lawyer representing the Maryland Chiefs of Police Association, said repealing the law would be a bad idea unless lawmakers replace it with something else that standardizes police disciplinary procedures statewide.
However, Kruger said she has a list of about 20 suggestions for how to “modernize” the law, including some already in Carter’s draft bill. For example, she said, a police chief should be able to fire officers convicted of certain misdemeanors without first having an administrative hearing.
“One of the values of the LEOBR is that it empowers management — the chiefs of police and the sheriffs who we all look to — to be held accountable themselves,” Kruger said. “This law empowers them to conduct investigations and take actions against their employees to achieve the type of accountability you are seeking.”
Maryland State Fraternal Order of Police General Counsel Mike Davey also backed some changes to the law, but he said the law needs to remain in place in some form to protect officers from being fired without good reason.
“Let there be a full, unbiased and thorough investigation to ensure that what happened did in fact happen and not just throw this officer, who they probably just spent over $120,000 in training, out the door,” Davey said.
Davey said the FOP opposes making complaint records public or allowing a civilian to conduct investigations.