For more than a decade, one of the areas of broad bipartisan agreement in Congress was on protecting police officers “unfairly targeted” for their “aggressive enforcement of the laws.” Legislation was regularly introduced to ensure that officers had every legal means available to defend themselves, part of a broader effort pushed by police officer unions to shore up protections for their members. It was the one area where conservative tough-on-crime and liberal pro-labor positions overlapped.
None of the legislation ever made it into law and the effort largely fizzled out in Congress a decade ago, but similar bills passed several statehouses and remain in effect to this day. The main thrust of all these proposals was to ensure that police unions were involved at every stage when an officer was accused of wrongdoing and the cops had the benefit of every doubt. It’s not something lawmakers talk about today, many of whom are instead backing proposals by Black Lives Matter to rein in police power and make prosecutions easier.
“Many times these brave officers do not receive basic rights if they become involved in internal police investigations or administrative hearings,” then-Delaware Senator Joe Biden said on the Senate floor in 2007 regarding the State and Local Law Enforcement Discipline, Accountability, and Due Process Act. He cited claims by police unions that cops “can be, and frequently are, summarily dismissed from their jobs without explanation.”
The legislation was backed by the Fraternal Order of Police and the National Association of Police Organizations, two of the largest unions and was co-sponsored by Democrats like New Jersey’s Robert Menendez and Washington’s Patty Murray and Republicans like Kentucky’s Mitch McConnell and Minnesota’s Norm Coleman. Near-identical versions introduced in the previous four congresses drew support from, among others, Democrats like Illinois’ Dick Durbin and California’s Barbara Boxer and Republicans like Georgia’s Saxby Chambliss and Pennsylvania’s Rick Santorum.
The various bills warned that the “lack of labor-management cooperation in disciplinary matters and either the perception or the actuality that officers are not treated fairly detrimentally impacts the recruitment of and retention of effective officers.” Law enforcement officers, they warned, did not have sufficient due process rights during internal investigations and disciplinary proceedings and that many officers were “unfairly targeted for their labor organization activities or for their aggressive enforcement of the laws.”
The bill would have guaranteed law enforcement officers a right to effective counsel “such as an employee representative”—a union official—before and during questioning and to only be questioned by one person. It would have prohibited police officers from being forced to take lie detector tests. They would have prevented police from being charged with any additional violation of the law that was uncovered as a result of an investigation. Only the initial charges counted.
Finding an officer guilty wouldn’t just be a matter of proving that the accusation was true. The investigators would have to prove that the officer could “reasonably be expected to have had knowledge of the probable consequences of the alleged conduct” and that rule or procedure that the officer was accused of violating was itself “reasonable.”
Officers could be suspended from their duties during an investigation but Biden’s bill would have prevented this from affecting their pay or benefits.
Finally, the bill would have made it easier for officers to sue their law enforcement employers in federal court for violations of their rights. Thus, pursuing a case against an alleged bad cop could have become very costly for those agencies if the case fell apart for any reason.
One notable feature of the bill was that it preempted state and local laws that conferred fewer rights on officers but not of laws that gave officers protections beyond those in federal law. The standard only moved in one direction—better odds for accused cops. “For example, my own State of Delaware has a law enforcement officers’ bill of rights, and those procedures would not be impacted by the provisions of this bill,” Biden told the Senate in 2007.
McConnell and Biden co-introduced the similar but even more far-reaching Law Enforcement Officers’ Bill of Rights Act in both 1995 and 1997.