Law Enforcement Officer Bill of Rights laws: time for reform

“I don’t understand how she [Baltimore Mayor Stephanie Rawlings-Blake] can continually say they’re not cooperating,” Michael E. Davey, an attorney for the police union, told The Baltimore Sun on Wednesday. “They are. They did. And they’re lucky they got those statements before I got involved.”

They’re lucky they got those statements before I got involved. That’s a little window into the adversarial relationship between the union representing six Baltimore officers under investigation and city officials charged with determining whether Freddie Gray’s fatal injuries in police custody might have been caused by foul play such as an unbelted “rough ride” in the back of a police van.

Newsweek, and before that the Foundation for Economic Education, have now reprinted a short Cato at Liberty piece in which I describe the operation of Law Enforcement Officer Bill of Rights (LEOBR or LEOBoR) laws, of which Maryland passed the first in the early 1970s, and which have spread to more than a dozen states; in many other localities union contract provisions accomplish some of the same goals. These laws sharply restrain how police forces can pursue misconduct investigations against suspected officers, and officials in Baltimore and elsewhere have repeatedly cited the law as an impediment to investigations of officer misconduct long predating the Freddie Gray incident, including the probe into the enormous scandal of employee misconduct at the state-run Baltimore jail. (I’ve got more at Free State Notes about the local Maryland angle, including the failure of efforts this year in the state legislature to reform the law.)

Radley Balko followed up with a post summarizing my argument and adding an important point, which is that these laws can provide a covert way for departments to sabotage investigations so as to help out fellow officers, by introducing seemingly inadvertent errors that ensure that charges will later have to be thrown out.

In my opinion, conservatives should no more defend LEOBRs than they should defend teacher tenure laws, and for much the same reasons. In response to rising criticism, which has intensified since Gray’s death in custody, police unions have begun a broad effort to shore up support for the laws. The version of my article at FEE, for example, drew a response from a Montgomery County Fraternal Order of Police official which you can read here together with my response.

One oft-heard claim that these laws merely give suspected cops the same rights as other suspected citizens. Don’t miss Ken White’s new post at Popehat blowing that argument to smithereens. Equally laughable is the suggestion from union brass that the laws merely put into effect Fifth Amendment or other constitutional rights. While a few cases from the Warren Court era did invent new constitutional constraints on public agencies’ handling of employee investigations, LEOBR laws go far beyond anything in those cases.

Further reading and listening: Ed Krayewski, Reason; Kojo Nnamdi show; New York Times “Room for Debate” roundtable with Prof. Paul Butler, my friend and former Manhattan Institute colleague Heather Mac Donald (the middle-of-the-roader, in this context) and FOP’s Chuck Canterbury. See also my coverage of correctional officers “bill of rights” laws in Maryland, Pennsylvania, etc. here, here, here, and here.


  • Ferguson shows that Mr. Olson overstates his position. Brown’s mother asserted that officer Wilson murdered her son early on, and the community backed her up. How often did we hear “Hands up, Don’t shoot”. AG Holder placated the mob by setting up a process that, by its nature, would find practices to justify outrage.

    Policemen do need protection from political processes. The arguments that the extant rules fouled investigation are untrustworthy. There is good money in suing police departments.

    • People were willing to believe the worst in Ferguson because of other factors – the ridiculous number of tickets and arrest warrants issued against its citizens, and the guy who was arrested in a case of mistaken identity and was beaten bloody and then charged with getting blood on the officers’ shirts. Not to mention the delay in releasing the officer’s name, the ban of news helicopters, the arresting of reporters, etc.; which made it seem like they had something to hide.

      Anyway, policeman should get the exact same protections that they give to citizens. If they think that more reliable statements are given when people have time to reflect, they should give everyone time to reflect. If they think due process is only served when people can review the evidence against them before giving a statement, then they should show all suspects all the evidence against them before interviewing them.

      Like Popehat said, “…when the police demand these special procedures, it necessarily means one of two things. Either they (1) want to protect their ability to lie, or (2) don’t give a shit about whether their regular interrogation tactics used on us are fair or reliable. “

    • William Nuesslein,

      While there was political pressure in Ferguson, it was no different (and maybe even substantially less) than the political pressure applied in the Treyvon Martin / George Zimmerman case. (After all, I don’t recall President Obama coming out and saying “if I had a son, he would look like Michael Brown.”)

      How Wilson and Zimmerman were treated in the cases illustrate and support Olson’s points:

      Zimmerman was arrested at the scene.
      Wilson was allowed to leave the scene.

      Zimmerman’s name was released to the press by the police almost immediately.
      Wilson’s name was not released to the press for a week and then only after a clumsy attempt to first “smear” the shooting victim.

      Zimmerman was taken back to the police station and detained.
      Wilson was allowed to drive himself back to the police station, collect his uniform (evidence), wash up, meet with a supervisor, get some legal advice from a desk sergeant and then was allowed to go home. His movements at the station were, for the most part, unmonitored.

      Zimmerman’s photo was released to the press by the police.
      Wilson’s photo was never officially released.

      Zimmerman was interrogated the night of the shooting and released the next morning.
      Wilson was asked a few questions and then sent home.

      One these details alone, the handling of two suspects in a shooting that involved the death of another person were handled radically differently.

      There is no doubt that the death of Brown and Martin resulted in politically charged atmosphere. We all remember the false narrative of “hands up – don’t shoot.” We also remember people wearing hoodies and tee shirts saying “I am Treyvon Martin.”

      Two shootings where the shooter feared for their safety. Two deaths. Two suspects treated differently.

  • There are equally strong political forces acting on officers to find evidence to arrest and convict, so why would they object to equal protections being afforded to those caught up in criminal investigations. As to those states which actually bar investigations into suspected brutality unless there is a signed Complaint by an eye-witness or victim–what possible justification could there be.

  • Richard,,

    Police amassing evidence for possible conviction is properly termed solving crimes. It’s what police do my construction.

    People actually said to me that Mark Fuhrman dropped the glove in the OJ case. But there were two dead people. at the residence of OJ’s ex-wife and OJ wasn’t out of town, or at a party, or anyplace else. Fuhrman would have been embarrassed had OJ had an alibi.

    OJ’s acquittal told the world how much the black community hated the police. His jury wouldn’t even consider Collin Yamauchi’s, DNA gels that showed to anybody the absolute guilt of OJ. In that case blind prejudice trumped the value of the lives of Nicole Brown and Ron Goldman. It wasn’t a lack of seat belt use that killed the Goldman lad, it was 47 stab wounds. Police deserve protection from race baiters.

    There is resisting arrest, so some damage to an arrestee would not be unusual. Requiring a complaint simply cuts down on false positive errors. An active plaintiffs bar ensures plenty of brutality charges.

    • Requiring a complaint simply cuts down on false positive errors.

      It also cuts down on true positives. Unless you’re saying that a police brutality charge could *never* be true without a complaint.

      Requiring a complaint means that if someone anonymously posts a video of police brutality on YouTube, clearly showing the officer’s face and clearly showing no basis for the brutality, no investigation could be opened unless the victim, who just got finished getting beaten by police, agrees to file a complaint with the police. That’s insane. I’d say “Imagine that standard anywhere else”, but it’s ridiculous enough right here that I don’t even need an analogy.

      Anyway, is there really such a large number of unwarranted police brutality investigations that *don’t* start with a complaint that police need to be protected from them?

  • […] P.S.: Flashback to this December post: “At least twelve Baltimore cops sought workers’ comp for stress after using deadly force on citizens [Luke Broadwater, Baltimore Sun/Carroll County Times] And I was a guest on the national Leslie Marshall show Monday, guest-hosted by Newsweek opinion editor Nicholas Wapshott, on the topic of Maryland’s Law Enforcement Officer Bill of Rights. […]

  • […] laws (there to defend the laws: Fraternal Order of Police national president Chuck Canterbury, seen in this space just a few days ago defending police officers “bill of rights” laws) And the Maryland […]

  • Very simple, if a government employee, including police, commit an act for which they think they need 5th Amendment protections, then they should automatically lose their jobs and pensions. If they can not testify about what the actions they have taken, then they are unfit to serve as public employees.