Jimmy Dulay: Protect the Rights of Officers Who Serve the Public

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By: Jimmy Dulay

The Maryland Law Enforcement Officer Bill of Rights (LEOBR) is a statute that provides police officers due process, prior to their discipline by the police agencies we serve.    The LEOBR does not shield bad police officers from discipline or termination. It does not hinder the retraining of officers.  It does not prevent the prosecution of criminal actors, despite what its detractors claim.   The LEOBR does, however, protect officers from politically expedient decisions made with no regard for the facts of an incident, ensuring that officers are provided a full and proper hearing prior to disciplinary action.

The Maryland General Assembly is considering several bills this year aimed at eroding the due process rights of the law enforcement officers who protect the public.   One bill even calls for the discipline of officers prior to any hearing.  In essence, this would create a guilty-until-proven-innocent standard, which we consider unacceptable for law-breakers, but are actually considering for law enforcement officers. 

The LEOBR was enacted due to a fundamental understanding that police work is complex. Instantaneous decisions affecting public safety are required under stressful scenarios that should not be second-guessed without careful deliberation. False complaints are routinely filed against honest, effective officers, because there is a criminal element that understands that the complaint itself can remove an officer from a crime-ridden post and jeopardize the officer’s career.   The law also recognizes and protects officers from decisions by elected officials seeking to appease an angry public, regardless of the facts and evidence of a matter. 

Under current law, the following basic rights are provided to officers under disciplinary investigation:

  • * The notification of the right to legal representation prior to an interrogation – an interrogation in which the officer is compelled to participate.
  • * Reasonable time to obtain an attorney – no less than 10 days – without agency permission.
  • * Prior to the interrogation, the officer shall be notified in writing of the nature of the investigation.
  • * 10 days prior to a hearing, the officer shall be provided a copy of the investigation, any exculpatory information and the names of the witnesses; the agency may exclude confidential sources, non-exculpatory information and recommendations as to charges, disposition or punishment.  This ensures the officer the ability to prepare for the hearing.
  • * The right to a three member trial board, selected by the agency, with one member being of equal rank.
  • * A hearing in which the agency must prove their allegations by a preponderance of the evidence, the lowest recognized legal threshold – essentially more likely than not.
  • * The right to cross-examine witnesses, proffer and examine witnesses and introduce relevant evidence.
  • * Assurance that if the trial board finds the officer not guilty of all charges, the matter is resolved.
  • * Right to judicial review of the agency decision.

LEOBR does not shield or prevent officers from being sued civilly or charged criminally.  Officers can be ordered to take lie detectors, submit to blood alcohol test and give both give written and oral statements.  LEOBR provides work place protections to very vulnerable public servants.

The pace and effectiveness of any disciplinary system rests in the control of management.   Nothing in the LEOBR prevents an agency from thoroughly investigating an allegation, interrogating and obtaining an accused officer’s statement, or charging an officer and scheduling a prompt trial board.    Nothing in the LEOBR prevents an agency from assigning skilled investigators to their Internal Affairs Division (“IAD”), utilizing experienced prosecutors to present cases or training trial board members.  Stated directly, the LEOBR creates a workable process; poor management practices create the problem.

Most agencies in Maryland, effectively discipline errant officers in full compliance with the statute.  Investigations performed in a timely and professional manner often negate the need for a trial board hearing by uncovering facts which fully exonerate an officer or irrefutably inculpate a wrong doer.  In the rare instance that a trial board is needed to resolve a matter, most agencies have proven adept at presenting cases and training trial board members to ensure just results.

The answers to improving public trust and addressing police misconduct does not rest in altering the provisions of the LEOBR.  Maryland public officials would be better served looking within their own local agencies and doing the following:

  •  * Assigning the agency’s best, not newest, investigators to the agency’s IAD;
  •  * Addressing the shortage of personnel assigned to IAD, to ensure cases are adequately and efficiently investigated;
  •  * Utilizing a formal early warning program, based not on sustained cases but rather on public complaints, to retrain officers and provide them with appropriate policing skills;
  •  * Hiring experienced prosecutors to evaluate completed investigations to ensure findings are supported by the evidence;
  •  * Scheduling trial boards in an efficient manner – no case should be pending more than 90 days following the completion of an investigation;
  •  * Providing training to trial board members on the nature of LEOBR and conducting a hearing;
  •  * And increasing supervisor and commander presence on the street to ensure officers are provided adequate supervision.

In conclusion, the Law Enforcement Officers Bill of Rights is essential to providing much needed due process to a class of public servants that must be judged on the facts and evidence of a matter.  We urge legislators in Annapolis to take the time this session to fully understand the status of current law and not pass legislation that will curb the due process rights of Maryland’s law enforcement officers.    

Jimmy Dulay is President of State Law Enforcement Officers Labor Alliance (SLEOLA), and a Detective Sergeant with the Maryland State Police.

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