This article was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system. You can sign-up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
It has been more than two weeks since Baltimore police dragged Freddie Gray into the paddy-wagon from which he would emerge, half an hour later, with a fatal injury to his spine. But as another day ticks by, Gray's neighbors and fellow citizens remain largely uninformed about what occurred in that van, and why.
As was true in a spate of recent death-in-custody cases, the Baltimore police department's seeming reluctance (or inability) to mount a prompt, thorough investigation of its own officers has generated escalating protests, fueled by existing distrust of the police and suggestions of a cover-up.
But in this case it wasn't just the thin blue line of solidarity shielding the cops involved from having to testify against themselves or each other.
The problem, said Baltimore Mayor Stephanie Rawlings-Blake, is that city officials were unable to "fully engage" with the officers "because of our Law Enforcement Officers' Bill of Rights."
That such a bill of rights exists was news to many in Maryland. But the mayor was correct to note the significant role that the LEOBoR, as it is called, has played in the investigation into Freddie Gray's death. A set of due-process rights for police officers under internal investigation for alleged misconduct, Maryland’s LEOBoR includes a provision that the officers cannot be forced to make any statements for 10 days after the incident, during which time they are presumed to be searching for a lawyer. It is partly because of this "cooling-off period" — to critics, a convenient delay for the cops to tidy up their stories — that so little has been said by the only people who know what took place within that vehicle.
The standard LEOBoR also provides that an officer may only be questioned for a reasonable length of time, at a reasonable hour, by only one or two investigators (who must be fellow policemen), and with plenty of breaks for food and water.
Samuel Walker, an expert on law-enforcement accountability whose research has focused on the LEOBoR, says that this "special layer of due process" afforded to police officers "impedes accountability, and truly is a key element of our lack of responsiveness to these cases” of apparent excessive force.
"But even though all of this has been on our minds, lately," he adds, "we haven't been talking about the LEOBoR. It's a scandal, really."
Maryland is hardly alone: 14 states have laws on the books guaranteeing a bill of rights for cops (and sometimes also correctional officers who are under investigation by their superiors. As many as 11 other states are considering similar legislation, and many of the rest have written essentially the same rights and privileges into their contracts with the police unions. A bill calling for adoption of a national LEOBoR is pending in Congress, and is re-introduced often.
The idea, say union officials, is that what constitutes due process for civilians is not protection enough for enforcers of the law, who operate under the aggressive scrutiny of internal investigators and the public. As the Police Benevolent Association has put it, "Rank-and-file police officers are sometimes subjected to abusive and improper procedures" by internal affairs officers and prosecutors out for blood.
Says Vince Canales, the president of Maryland's Fraternal Order of Police, "All this does is provide a very basic level of constitutional protections for our officers, so that they can make statements that will stand up later in court."
"The police," he adds, "have rights like anyone else."
And then some. LEOBoR is the original Bill of Rights with an upgrade, assuring police officers treatment that they themselves do not consistently offer to suspects they are questioning. Here is a sample of the common provisions in these measures, which vary from state to state:
If a department decides to pursue a complaint against an officer, the department must notify the officer and his union.
The officer must be informed of the complainants, and their testimony against him, before he is questioned.
During questioning, investigators may not harass, threaten, or promise rewards to the officer, as interrogators not infrequently do to civilian suspects.
Bathroom breaks are assured during questioning.
In Maryland, the officer may appeal his case to a “hearing board,” whose decision is binding, before a final decision has been made by his superiors about his discipline. The hearing board consists of three of the suspected offender’s fellow officers.
In some jurisdictions, the officer may not be disciplined if more than a certain number of days (often 100) have passed since his alleged misconduct, which limits the time for investigation.
Even if the officer is suspended, the department must continue to pay salary and benefits, as well as the cost of the officer’s attorney.
Of course, all of these rights apply only during the internal investigation of police officers, that is, by their own departments. They would not receive this special treatment during a criminal investigation by an outside agency such as the Department of Justice.
However, writes Mike Riggs at Reason.com, the departmental investigation is often the only investigation, especially in less-publicized cases.
Moreover, says Riggs, all the rules and procedures in the LEOBoR make it so time-consuming and cumbersome to do a full investigation that the department will often opt not to take the trouble. As a result — as in the cases of Major Joseph Floyd in Florida; Officer Michael Vagnini in Milwaukee; and the Fullerton, California, police officers who beat to death a homeless man named Kelly Thomas — an officer can rack up a number of complaints but be given a pass until he does something more serious. (Maryland’s version also includes a provision that complaints and investigations into an officer’s conduct may be purged after three years.)
The LEOBoR arose in the late 1960s and early 1970s, a reaction against the efforts of civil-rights activists to demand greater police accountability, including the advent of civilian review boards. Under these bills of rights, an investigation by fellow officers may preempt a civilian review.
In two rulings in 1967 and 1968, the Supreme Court sided with police officers who claimed that they had been deprived of their Fifth Amendment right against self-incrimination. The justices ruled that police could not be forced (by threat of firing or otherwise) to testify against themselves, even in an internal, administrative investigation.
By 1972, Maryland had codified the high court's decisions into the nation's first LEOBoR. Florida soon followed, and then Rhode Island — considered the only state with a more police-friendly version of the LEOBoR than Maryland's. (In Rhode Island, for example, not only is the accused officer’s case decided by a hearing board of three fellow officers, the officer gets to choose one of those officers.)
Steve Drizin, a law professor at Northwestern University and an expert on the rights given to suspects — police and civilians — during questioning, says that these new bills of rights "were introduced by Fraternal Order of Police lobbyists, and sailed through legislatures in the 70's and 80's."
"There was no real discussion," says Drizin. "The rights were simply accepted as uncontroversial."
But the debate is mounting, now that Maryland's 43-year-old LEOBoR seems to have prevented a swift accounting of how Freddie Gray was killed.
The question at hand, according to Walker's study of LEOBoR's around the country, is whether the police, because they are tasked with resolving in-the-moment, life-or-death situations, deserve special rights when they are investigated after the fact. Or, because of the power that comes with a badge and gun, should they be subjected to special scrutiny?
Jeffrey Fagan, an expert on policing at Columbia Law School, asks why cops would feel they need more special consideration: "They want better treatment than other criminal defendants? They already have 95 percent of civil-rights law on their side, starting with qualified immunity."
Peter Neufeld, a lawyer who, during the infamous Abner Louima case, fought a rule that required criminal investigators to wait 48 hours before questioning police about their conduct, says that any version of a "cooling-off period" can be particularly insidious.
Neufeld, who was part of the legal team that won Louima an $8.75 million against New York’s police union, says that such a waiting period "allows these officers to wait until the forensics come in before constructing a narrative. Sure, even if you were able to question them earlier in the process, you wouldn't get many cops who would confess. But you would get some who'd make false exculpatory statements, and that’s a big deal."
Neufeld argues that if officers accused of wrongdoing were interviewed immediately following the event, they would not have their cover stories at the ready, and years of follow-up external investigation could be avoided.
But Canales, the head of the Maryland police union, says that the real source of controversy should not be the LEOBoR. "What people are mad about, right now, is our lack of communication — and we do need to be better about that. We've got to keep the public better informed about how exactly we're conducting these investigations and what we know or don't know... But the LEOBoR doesn't have anything to do with this question of transparency, if you think about it."
"All this bill of rights does,” he says, “is provide basic due process for our officers, who are covered by the Constitution just like anyone else."
Drizin agrees, though from a different vantage point. "I don't think, actually, that police officers should not have these rights. I think that everyone should have a bill of rights like this."