H.R. 1972 versus state law and collective bargaining agreements

November 7, 9:52 AMPolice Law ExaminerEric Sloan

Previous Next

Comment Print Email RSS Subscribe

Subscribe

Get alerts when there is a new article from the Police Law Examiner. Read Examiner.com's terms of use.

Email Address   Include other special offers from Examiner.com Terms of Use

H.R. 1972 is in there somewhere.
AP Photo/Alex Brandon

A number of questions were received regarding H.R. 1972 and how the federal bill, if passed, would impact police officer bill of rights and similar state law. For those of you in collective bargaining states, the express language of H.R. 1972 provides that it will not "preempt any provision in a mutually agreed-upon collective bargaining agreement, in effect on the date of enactment of the Law Enforcement Officer’s Procedural Bill of Rights Act of 2009, that provides for substantially the same or a greater right or protection afforded under this section[.]"

With regard to existing state law, H.R. 1972 states that it does not "preempt any State or local law, or any provision of a State or local law, in effect on the date of enactment of the Law Enforcement Officer’s Procedural Bill of Rights Act of 2009, that confers a right or a protection that equals or exceeds the right or protection afforded by this section."

Essentially, preemption on either front would occur if a collective bargaining agreement or state law confers less than H.R. 1972 provides. The short answer, therefore, is that H.R. 1972 simply adds to the inventory of rights. For your brothers and sisters in non-collective bargaining states, it is a move away from the "Wild West" theory of police discipline and into the modern era.

Here is a quick example of what H.R. 1972 will remedy. In October 2009, the Miami Herald reported that a hidden video camera was discovered in the internal affairs interrogation room of the Miami Beach Police Department, which was allegedly installed in 2004. Obviously, the police union and the Fraternal Order of Police had severe problems with this on a variety of grounds.

Here is what the Florida Police Officer's Bill of Rights says:

"The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, shall be recorded on audio tape, or otherwise preserved in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the interrogated officer, a copy of any such recording of the interrogation session must be made available to the interrogated officer no later than 72 hours, excluding holidays and weekends, following said interrogation."

Does it say the language above prohibit hidden cameras? Nope. A good argument could also be made that an interrogated officer is also only allowed to receive a copy of the audio tape. Does H.R. 1972 prohibit hidden cameras? Nope. In fact, the recording procedure between the two is substantially similar; however, the federal bill requires the department to provide a copy of the entire investigative file, which in this case would include the video recording, if any.

This probably means, therefore, that the Florida law dealing with recording will survive the passage of H.R. 1972, but H.R. 1972 will preempt Florida law with regard to the officer's right to the complete file maintained by internal affairs regarding the investigation.

Another difference is that the Florida statute provides for a rather mild basis to pursue a civil action if an officer's rights are breached. H.R. 1972 would preempt that portion of Florida's law because of the civil remedies contained in the text of the federal bill. In the example above, an officer could apply for an injunction with the goal of permanently removing the camera. If an officer can show damages through the department's use of "bad faith or frivolous denial of rights, or a malicious filing for an improper purpose," then other remedies exist that are absent from the Florida statute.

The bottom line is that H.R. 1972 adds to existing law enforcement procedural rights regardless as to whether those rights are statutory or contractual.

Eric Sloan's articles involve legal topics applicable to law enforcement officers; however, such articles do not establish an attorney-client relationship between the author and the reader and should not be construed as legal advice. Do you have questions or article ideas? Add Eric as a Facebook friend by clicking here and let him know.