Abstract
This article presents the “ Police Officer's Bills of Rights “ (POBR)bill, a document
introduced by Congressman Mario Biaggi during the 1971-1972 session, which politically
speaking has not been implemented as legislation at the federal level, but progressively
managed to be adapted in some states. The article’s purpose focuses on the section “Rights
and Responsibilities of Law Enforcement Personnel in Disciplinary Investigations” , as it
outlines the formal structures that agencies must follow to pursue the US constitution’s
fundamental principles that ensure officer rights to due process. While, in the Statement
Compelled from Law Enforcement Employees ' article,argue that on the formal procedure
guaranteed under Garrity’s rights that police officers are entitled to impose certain constraints
during an investigation .
According to Wayne W. Schmidt, former executive director of the AELE Law
Enforcement Center, a non -profit organization that provides legal research assistance to law
enforcement officials and correctional administrators, believes that the “Peace Officers Bill of
Rights “ (AELE | Wayne W. Schmidt, n.d.) document has value in terms of formative and
procedural guidance to law enforcement agencies to ensure officer’s right to due process and
to require states to enact laws on disciplinary, accountability and enforcement procedures.
Conforming to the perception of the American federal government of 1787, every citizen has
protected rights under the constitution which implies to some extent that police officers are
entitled to have protected rights as well. Therefore, since this legislation was not recognized
by federal laws,it has only been functional in certain states. This may compromise the
understanding of what this legislation refers to.
Pursuant to the author, there is no harmony among state POBR versions. Some protect
firefighters, deputy sheriffs, corrections officers and police chiefs; others exclude some or all
of those. A few require members of a disciplinary hearing or appeal board to be sworn peace
officers; others do not. The laws can either supersede or be subordinate to collective
bargaining agreements. Specific rights and prohibitions that are codified in some states are
not mentioned in others (Schmidt,2005).While, not all states contest the same version of the
document,however, share the same philosophical principle which is to establish rights for law
enforcement during an investigation arising from misconduct committed in the exercise of
their functions. Schmidt argued that “ although there was no immediate intention to have the
IACP’s version introduced in the Congress, it would have been available-as a reference
document-- in those states where POBR legislation might be pending (Schmidt, 2005). But
despite the dedeat, the document remains a valuable resource as an alternative to union-
sponsored legislation.
The POBR does not condemn misconduct, on the contrary, ensures the accountability
of law enforcement officers by guaranteeing due process rights during investigations. Wayne
Schmidt was specific in stating that“ Rights and Responsibilities of Law Enforcement
Personnel in Disciplinary Investigations” section of the document was not a model. Due to
the fact that case law policies differ between each state, but seen as a general review
providing an overall structure of procedural policies. This responds to the presumption to
which this legislation refers, which is to protect the rights of police officers during internal
investigations and disciplinary proceedings due to the lack of protection of their right to due
process. According to him, the document focuses on the fundamentals, of which the objective
of a disciplinary investigation is to collect facts in an impartial manner.
Agencies are required to follow procedures that provide rights related to obtaining formal
statements as well as requiring the agency to provide a copy of discipline to the officer.
Through the procedure, a formal statement may not be taken without a signed written
complaint, and the officer has the right to receive a summary of the allegations, which seems
perfectly normal, because anyone accused of a fact has the right to be able to defend
themselves. In comfort with the principles of the constitution, the procedures provide that
each employee who appeals for misconduct at the request of their agency has the right to have
a formal interview treating employees with due respect. Therefore, the formality of the
interview can only be supported under certain conditions. The interrogation must be
scheduled at a reasonable time, unless the seriousness of the investigation requires an
immediate meeting.The interview shall take place at (a) the usual duty station of the officer or
employee, or (b) at the regular premises of the person in charge of the interview. Where the
interview is to be conducted by personnel from two or more investigating agencies, it shall
take place at the premises of one of the investigating parties (Schmidt, 2005).
In addition, the procedures require that each person who is subjugated to misconduct
has the right to consult the contents of his file during working hours. These requirements are
intended to ensure that agencies do not make unreasonable decisions or show bias towards
any party. Thus, in the “ rights and procedures “ section of the procedure, it proposed that
during a formal interview, a manager or an employee is entitled to the assistance of an
attorney or a representative of his or her union (or association) if any. The interview shall be
delayed, not more than [three] business days while the officer or employee obtains
professional assistance (Schmidt, 2005).While an attorney or representative can object to a
question, if he advises his client to refuse to answer, the officer or employee is subject to
termination or other disciplinary action for such refusal, even if the allegations against the
officer or employee are without substance (Schmidt 2005). However, any closed case can be
reopened when new evidence is discovered, and The agency need not inform those officers
and employees who were notified of the prior disposition, until such time as they are re-
interviewed or otherwise are involved in the reopened investigation (schmidt, 2005).
The duty of an officer goes up to a certain point, that is, the constitution recognizes the rights
of the person, the right to act in accordance with human morals, despite the duty of the
uniform. In the Statement Compelled from Law Enforcement Employees’s article, written by
Michael E. Brook argues that Garrity’s procedures impose certain constraints on interviews
as they can only be emancipated as an individual proceeding and cannot be conducted in a
standard manner, while the POBR bill ensures compliance with legality in terms of
procedural fairness during an administrative investigation. The main reasoning is projected
on the self- incrimination clause of the Fifth-Amendment to the U.S Constitution prohibits
forcing individuals to provide evidence against themselves in a criminal matter. The
due process clause of the Fourteenth Amendment makes these requirements applicable to the
states. However individuals can voluntarily decide to provide information to authorities that
subsequently is admissible against them in a criminal proceeding (Brook, 2002).
Although the United States Supreme Court established in Garrity v. New Jersey that
Garrity Rights defend government employees who are compelled to provide statements as
part of administrative investigations, the law’s claim Garrity rights remain in disagreement
according to its understanding. The U.S. Supreme Court ruled in Garrity v. New Jersey that a
violation of the Fourteenth Amendment occurs when the government uses a police officer's
statement in a criminal trial against that officer when the statement resulted from his being
told that he might lose his job if he failed to answer the questions. In Garrity, local New
Jersey police officers who were the subjects of a public corruption probe were interviewed by
state investigators. The officers were told that they did not have to answer any questions, but,
if they did, their answers could be used against them in criminal proceedings (Brook, 2002).
In Justice Douglas' statement he says that a person who chooses to incriminate themselves
rather than lose their job is not voluntarily giving up a constitutional right. He wrote, "We
conclude that policemen, like teachers and lawyers, are not relegated to a watered-down
version of constitutional rights." Therefore, public officials, including police officers, cannot
be forced to make such a choice and answer questions and, then later, be found to have
exercised their free will voluntarily, allowing their answers to be used against them in a
criminal proceeding (Brook, 2002).
It must be said that there is no official declaration in the Constitution of the United States
which can prohibit the administrators from taking disciplinary measures against their
employees, however in conformity with constitutional morality every person has the right
to
be protected by the rights conferred on it. Meaning that the discipline must be in accordance
with laws. All law enforcement officers regularly file reports of investigative activity. An
officer who fails to do so in a particular case could be subject to administrative sanctions. An
officer who never files reports eventually would be fired for nonperformance. An officer who
refuses a superior's order to file a report concerning a specific incident could be dismissed for
insubordination. Does this mean that any investigative report is subject to Garrity protection
because the officer filing the report is subject to administrative sanctions, which might
include termination, for failure to file the report (Brook, 2002).
The answer is, the case law since the Garrity decision clearly holds that only the threat
of severe administrative sanctions will trigger the Garrity protection (Brook, 2002). If
claiming Garrity’s rights remains unclear it is how we must define the threat that triggers the
Garrity protection. Is the implied threat of severe administrative sanction sufficient (Brook,
2002)?The U.S. Supreme Court has ruled that a refusal to voluntarily waive the Fifth
Amendment right against self-incrimination can be considered when determining an
appropriate administrative punishment. In Baxter v. Palmigiano,22 the Court held that telling
a prisoner at a disciplinary hearing that he could remain silent but that his silence would be
considered when imposing administrative punishment did not amount to compulsion
triggering Garrity immunity protection. The Court held that while the exercise of a right to
silence can never be considered by a criminal court, there is no such prohibition to its
consideration during an administrative proceeding. The Court ruled that as long as the silence
is not used, in and of itself, to justify an adverse finding, there is no violation of the
Constitution when considering the exercise of the right against self-incrimination in a
noncriminal proceeding (Brook,2002).
If the constraint about Garrity immunity seems to be uncomprehensible by its
meaning, it is because it goes case by case. The author believed that there is no
specific
restraint about Garrity rights, since there is no official declaration in the Consitution that
prohibit administrator from taking disciplinary measure against their employees. He argues
that while those investigators must be careful to avoid "compelling" a subject to provide
information when criminal prosecution is contemplated against that subject, they still have
significant power to encourage cooperation by all law enforcement employees. More
significant, the law enforcement administrators should not be concerned that routine
investigative reports will be cloaked with any Garrity immunity (Brook, 2002).
In conlusion, procedures within an agency are important because they make it
possible to meet the requirements of the businnes. For a procedure to be effective, its
structure must contain conditions that can be appropiate and relevant. Despite not being a
federal legislation, the section “Rights and Responsibilities of Law Enforcement Personnel in
Disciplinary Investigations” insist on the quality of protecting the due process of police
offfier’s during and adminisrative investigation. It is useful by its aspect which ensures the
implementation of certain principles. Unfortunetaly, its conten cannot be exact, since each
states follow their own legislations. I believe for those who look for a reforme, in the police
department, the “ Police Officer's Bills of Rights “ (POBR)bill must mandate in the federal
level, because its effectiveness does not stop at the conduct of the police but ensures a better
