Report Title:
Law Enforcement Officers; Bill of Rights
Description:
Establishes the law enforcement officers' bill of rights.
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THE SENATE |
S.B. NO. |
2986 |
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TWENTY-FIRST LEGISLATURE, 2002 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to law enforcement officers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS
PART I. GENERAL PROVISIONS
§ -1 Policy statement. Law enforcement officers have a vital mission in society. This chapter is enacted because:
(1) Historically, law enforcement officers have not been afforded the full complement of constitutional and other protections provided to members of society; and
(2) The unique nature of the responsibilities associated with being a law enforcement officer, combined with the legitimate needs of a law enforcement agency to maintain an efficient and effective organization, require that law enforcement officers be afforded certain substantive, procedural, and remedial protections not afforded to members of society generally.
§ -2 Statutory construction. Any ambiguities within this chapter shall be resolved by providing a liberal interpretation to effectuate the policy statement in section -1. Any conflict between this chapter and any other state law shall be resolved to give effect to this chapter, which supersedes all state law to the contrary. Similarly, this chapter preempts all county law.
§ -3 Administrative regulations. A law enforcement agency may adopt administrative rules under chapter 91 necessary to implement this chapter.
§ -4 Definitions. When used in this chapter, unless the context otherwise requires:
"Aggrieved law enforcement officer" means a law enforcement officer whose rights as provided for under this chapter have been violated.
"Law enforcement agency" means any state, county, city, or other governmental agency that has as its primary responsibility the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws including but not limited to all police departments and sheriff departments.
"Law enforcement officer" means a member of a law enforcement agency, either full-time or part-time, cadet or officer, probationary or nonprobationary, commissioned or noncommissioned, career or noncareer, tenured or nontenured, merit or nonmerit, paid or unpaid, who is serving in a position for which the primary responsibilities are the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws. A law enforcement officer position is usually indicated by formal training (regardless of whether the officer has yet completed or even been assigned to the training) and is usually accompanied by the power of arrest.
"Officer" means a law enforcement officer.
"Punitive personnel action" means punishment imposed as a result of a finding of guilt in a disciplinary hearing. The following personnel actions may be punitive, depending on whether instituted for the purpose of punishment or as sound, discretionary management decisions based on the legitimate needs of a law enforcement agency to maintain an efficient and effective organization:
(1) Dismissal from a law enforcement agency;
(2) Suspension from a law enforcement agency;
(3) Demotion in rank;
(4) Loss of base pay, leave pay, shift pay, bonus pay, overtime pay, sick leave, leave time, or work opportunity;
(5) Placement of adverse material in a law enforcement officer’s record, including any temporary or permanent file relating to personnel, performance, promotion, or retirement matters; and
(6) Involuntary transfer or reassignment;
provided that these actions are nonpunitive as applied to a law enforcement officer with less than one year of service.
PART II. RIGHTS
§ -11 Generally. A law enforcement officer shall enjoy all of the rights, privileges, and protections afforded to members of society generally, regardless of whether the source is constitutional, statutory, regulatory, or otherwise. In no manner shall an officer be deemed to have fewer rights, privileges, or protections solely by virtue of the officer’s status as an officer. This includes the right to exercise any privilege or protection without fear of threat, harassment, retaliation, or punitive personnel action. Even though this section shall be deemed to encompass all rights, privileges, and
protections, sections -12 to -16 address rights, privileges, and protections of particular concern to officers.
§ -12 Bill of rights. Each law enforcement officer shall receive a copy of this bill of rights, as well as all subsequent amendments enacted by the legislature. Each officer shall receive a copy of all administrative rules adopted pursuant to this bill of rights. The rules, at a minimum, shall contain a description of all conduct subject to punitive personnel action, and shall set forth the maximum punishment for each violation. An officer may waive any right provided by this bill of rights; provided that the waiver is in writing and contains the following language:
WAIVER OF THE LAW ENFORCEMENT OFFICERS'
BILL OF RIGHTS
The Law Enforcement Officers' Bill of Rights is designed to provide the law enforcement officer with certain substantive, procedural, and remedial protections as afforded to members of society generally. A law enforcement officer is entitled to the full complement of all constitutional protections afforded to members of society, including but not limited to the fourth, fifth, and sixth amendments of the United States Constitution. You are strongly urged not to waive any protection afforded by this bill of rights unless an attorney or other knowledgeable individual representing your interest believes that a waiver of a given right is in your best interest. It is a violation of your rights for any individual to obtain or attempt to obtain a waiver from you by trickery, harassment, or threat.
I, __________________________, have read and considered the above paragraph concerning waiver of my rights under the Law Enforcement Officers' Bill of Rights. I have indicated my decision concerning waiver, this ___ day of _____, 200_, as follows:
(1) I refuse to waive any of my rights under the Law Enforcement Officers' Bill of Rights.
___________________________
Signature
(2) I do not waive all of my rights under the Law Enforcement Officers' Bill of Rights. However, I do waive the following rights, either designated by the section number or explained as follows: _________________________________________
________________________________________________________________
_____________________________
Signature
(3) I waive all of my rights under the Law Enforcement Officers’ Bill of Rights.
_____________________________
Signature
§ -13 Collective bargaining agreement. A law enforcement officer is entitled to all substantive and procedural benefits contained in a collective bargaining agreement. The negotiated rights may be used by an officer in lieu of or in addition to this bill of rights.
Notwithstanding any other provision to the contrary, a collective bargaining agreement may not waive or modify the constitutional rights identified in sections -14 and -16.
§ -14 Political activity and other first amendment interests. A law enforcement officer, when off-duty and when not acting in an official capacity, shall enjoy the same right to engage in political activity and the same freedoms of speech, expression, and association afforded to members of society generally, subject to reasonable regulation by a law enforcement agency with regard to association with known felons.
§ -15 Right of nondisclosure. A law enforcement officer shall not be required to disclose any personal, family, or financial information relating to the officer or any member of the officer’s family or household, subject to reasonable regulation by a law enforcement agency with regard to the mental and physical capabilities necessary to perform as an officer.
§ -16 Fourth, fifth, and sixth amendments. A law enforcement officer shall enjoy the full complement of all constitutional protections afforded to members of society generally by the fourth, fifth, and sixth amendments to the United States Constitution, as made applicable to the states through the due process clause of the fourteenth amendment.
§ -17 Due process of law. A law enforcement officer shall be afforded due process of law. In determining due process rights, an officer’s position of employment shall be deemed a property interest, protected by the due process clause of the fourteenth amendment, once the officer has successfully completed all training and probationary periods, but in no event later than two years after the commencement of service as an officer.
§ -18 Civil remedies. (a) Any law enforcement agency, or personnel or agent thereof, that fails to comply with any provision of this chapter shall be liable to the aggrieved law enforcement officer in an amount equal to the sum of any actual damages sustained by the aggrieved law enforcement officer.
(b) Any law enforcement agency, or personnel or agent thereof, that fails to comply with any provision of this chapter shall be liable to the aggrieved law enforcement officer for punitive damages, as determined by the court, in addition to any actual damages provided for in subsection (a).
(c) Whenever a law enforcement agency, its personnel, or its agent fails to comply with any provision of this chapter, an aggrieved law enforcement officer may institute a civil action for injunctive relief, including an application for a permanent or temporary injunction, restraining order, or other action.
(d) In any successful action for damages or injunctive relief, the costs of the action, together with reasonable attorney’s fees, as determined by the court, shall be added to any damages or relief awarded by the court under subsections (a), (b), and (c).
(e) Any action under this chapter shall be brought within one year from the last date of the occurrence of any violation, or within one year from the date on which the aggrieved law enforcement officer learned, or should have learned, of the violation.
(f) In addition to the civil remedies under subsections (a), (b), and (c), an aggrieved law enforcement officer shall have the right to seek other remedies or pursue other causes of action that are available to the officer under the constitution, statutes, rules, collective bargaining agreement, and otherwise."
SECTION 2. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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