When's the best time to question someone accused of wrongdoing? What if that person is a police officer?
Those questions are at the heart of a rekindled debate over Maryland's Law Enforcement Officers' Bill of Rights law following the death of Freddie Gray, who sustained fatal injuries while in Baltimore police custody. The law grants protections to police officers accused of abusing their power, including a 10-day cooling off period before any questioning about possible misconduct.
Fourteen states have these types of laws on the books, and they're designed to guarantee fairness to officers in internal investigations. But many critics say the protections go too far. Maryland's ACLU says the state's LEOBR is the most extreme.
"If you're in a fight, or a crash, or some sort of upsetting incident, cops don't wait for you to cool down and collect yourself," wrote Ken White of the law blog Popehat. "They want your statement now. They want you to be unbalanced, emotional, vulnerable. But for cops, it's a different story."
Herbert Weiner has represented Maryland police officers in civil and criminal cases for 42 years and is an expert on Maryland's LEOBR law. He also represents one of the officers who's been criminally charged in connection to Gray's death. Weiner couldn't speak to the case, but in an exclusive interview, he defended the state's police Bill of Rights, which he says has become an unfair punching bag. Questions and answers have been edited for brevity and clarity.
Maryland was the first state to pass a Law Enforcement Officers' Bill of Rights back in the 1970s. Why?
Prior to that, there was a hodgepodge of laws around the state. Some agencies had absolutely no protection. In a lot of areas, someone could be called in and discharged without any reason. A sheriff or chief would just call you in and say, "You're finished, pack up, you're done."
Was there a specific problem that they were trying to address?
I think there was a recognition that by virtue of the work that law enforcement officers do, they really are in a position to get a lot of complaints filed against them. One is the obvious, no one likes to be locked up. No one likes to be arrested. So there's always a revenge factor. "Well, you've made my life difficult, so I'm going to respond in kind, and I'm going to charge you with some type of misconduct and maybe I'll get your job."
Another obvious one is the fact that in many instances people file complaints after they're arrested in hopes of making a deal with the prosecutor and the police officer to the effect of, "If you will drop the charges, or if you will give me a better deal, I’ll drop the complaint against you."
And number three – very obvious in today's world – is a lot of civil suits have been filed recently, and unfortunately a lot of those suits have been successful.
Why a 10-day cooling off period?
Let me dispel a little bit of that myth. The 10-day rule only applies to the accused police officer. Anybody who witnesses misconduct – whether it's a citizen or a police officer – can be compelled to give a statement immediately. There is no 10 days.
The only reason why there's 10 days for the accused officer is to give that officer the opportunity to get counsel, so that the officer can be appropriately represented. And I can tell you in the thousands of police investigations that I've been involved in over the last 42 years, I have never seen an investigation where the department would be ready to take a statement from an accused officer in less than 10 days. Sometimes it takes 10 days just to schedule an appointment with the complainant. You need to locate other witnesses. You might have to pursue jail records, hospital records, if there are injuries involved. If you have of all that information, you're then going to be in a position to have a meaningful interrogation of the accused police officer. I can assure you that is always more than 10 days. I cannot remember anything less than that.
Help me wrap my head around this though. If I were arrested for murder, and brought down to a police department, wouldn't they want to question me right away?
Yes, they would.
But you couldn't do that to an officer?
You can't do that to anyone in the United States of America. Why should police officers be treated differently? The Law Enforcement Officers Bill of Rights doesn't cloak the officer with any special privileges. The protection is given to the officer by virtue of the United States Constitution. That's what gives every citizen the right not to incriminate themselves.
Imagine if the state's attorney seeking to prosecute a criminal or someone charged with a crime could say to that person, "Now, before I bring this prosecution I need to know your defense. I need to know what you're going to say." What a great, great advantage that would be to the state's attorney. Well, that's the advantage that prosecutors and the police department have, because my [clients], when it comes to the administrative case, they don't have the luxury to keep quiet. They have to make a statement, they have to disclose their defense, and it can be used against them.
The [Officers'] Bill of Rights has no impact whatsoever on the processing of a case to decide whether the officers, or any officer, should be charged criminally.
general counsel, Maryland State FOP Lodge
Why do we need a piece of legislation if these rights are already enshrined in the U.S. Constitution?
Because [constitutional rights] only [apply to] cases where there's criminal charges. There are hundreds of cases of misconduct lodged against officers for let's say discourtesy, neglect of duty, failure to obey a certain rule and regulation of the police department. There is no implication of constitutional rights. In those cases, the LEOBR gives them the right to be represented, which can include an attorney or a union representative, gives them the adequate time to get that representation and then make a statement.
The mayor said that the Officers' Bill of Rights is part of the reason that the public can't find out anything right now, and that they have to move at their current pace.
I don't think that's correct at all. I won't discuss that case nor can I, it's inappropriate, but a lot of those officers gave voluntary statements anyway. The Bill of Rights has no impact whatsoever on the processing of a case to decide whether the officers, or any officer, should be charged criminally.
The ACLU says that unlike due process for any other employees in the state, the LEOBR means officers essentially have a full-blown trial before a jury of other officers, people appointed by the police union and the chief before there's any decisions made. Why do you have to go through this?
It's a tribunal that's designed to determine if the officer that's accused of misconduct is guilty. They make a recommendation on punishment. That recommendation is forwarded to the police commissioner. And by the way, the police commissioner has the right to reject the punishment offer and he can increase the punishment up to and including termination.
Should the commissioner have that right to not go along with this board?
Frankly, I have a problem with that, conceptually. Unless there's some exceptional circumstances that come in after the fact, why not say to that board – since I have the faith and the confidence in you and your integrity to do the right thing – why not accept their recommendation as to punishment? I'm in favor that the recommendation should be final and binding.
The Cato Institute says we should throw out all these LEOBRs. If we did that, what would the impact be to police officers?
I think police officers would be subject to a lot of frivolous prosecutions. I think good police officers would lose their job and their standing. And when you take a person's job away in law enforcement, you stigmatize them to the effect that they will never get another job in law enforcement and in most cases, couldn't even be recertified, at least in Maryland. So they lose, their spouses and families lose, health benefits, and they lose their chosen profession – a very high price to pay. So when we pay it, it needs to be done correctly.
Is there any point that you think has been missed in this debate?
I just wish that people would understand that in my 42 years, I've never really been associated with police officers who get up in the morning, put on their uniforms, go out and risk their lives and say to themselves, 'Let me see whose rights I can violate today. Let me see who I can falsely accuse of doing something, or falsely arrest, or talk to in an inappropriate manner. In this city we've buried over 100 officers in the line of duty. I've seen officers working for very little money, under some very adverse conditions, with not a lot of thanks coming back.
How do you make sense of the public protests right now?
I don't have a problem with people peaceably demonstrating. That's also is a constitutional right.