Update: On the final day of the 2021 legislative session in May, Missouri lawmakers passed a “law enforcement bill of rights” that gives officers special legal protections and closes files to police misconduct.
Missouri Gov. Mike Parson is expected to sign a law enforcement officer bill of rights into law this summer, even though other states have moved to repeal their law enforcement officer bills of rights as part of a larger effort to hold police officers accountable.
Surprisingly, just over a year after the murder of George Floyd, Missouri’s leading media outlets hardly noticed the passage of the bill, which was thought to be dead until the last hours of the May legislative session.
The wide-ranging legislation contains multiple roadblocks for police accountability: It codifies a law enforcement officer bill of rights, closes police misconduct records to the public and makes it harder to reduce police department budgets. It would go into effect at the end of August.
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An attorney for Missouri police unions drafted the bill. He said officers deserve due process protection because they are held to a higher standard than other occupations. But critics said the bill gives police rights that no other accused suspect has and that it enables an abusive police officer to get his or her story together before interrogation.
In the wake of the police murder of Floyd, many state legislatures passed bills to address systemic racism in policing and remove barriers to disciplining officers for misconduct.
In April 2021, Maryland became the first state to repeal its law enforcement officer bill of rights, after Democratic lawmakers overrode the governor’s veto. Lawmakers in Rhode Island have proposed similar legislation for a full repeal. In Delaware, lawmakers have proposed significant reforms to the state’s law enforcement bill of rights, including opening police misconduct records to the public, forming civilian review boards and striking key provisions that shield police officers from discipline.
Missouri, however, moved in the opposite direction: It is the only state to adopt a law enforcement officer bill of rights following George Floyd’s death, according to the National Conference of State Legislatures.
The bill of rights provides that 24 hours prior to any interview or interrogation, a police officer accused of misconduct would be informed in writing of the nature of the allegation. The person complaining must submit an affidavit with personally identifying information that outlines the allegations, and the affidavit would be disclosed to the officer, even if the person complaining is a fellow officer. The officer in question would also be informed of the name, rank and command of the officers conducting the investigation.
Samuel Walker, a professor at the University of Nebraska Omaha who is a leading expert on police accountability, said that the 24-hour waiting period is “a real invitation to undermining discipline.”
“It creates a window here in which the officer can get his story together and talk to other officers [and] come up with a narrative that will exonerate him,” Walker said in a phone interview.
Prior to an interrogation, police officers accused of misconduct and their attorneys would have the opportunity to review any audio or video in the possession of the agency. The officer may only be questioned or interviewed while on duty and may not be questioned by more than two investigators.
The officer may not be “threatened, harassed, or promised rewards to induce them into answering any question.” Although accused police officers can be compelled to give a statement to their employer, that statement cannot be used against them in any criminal case brought against the officer—a result of the Supreme Court ruling in Garrity v. New Jersey (1967).
Employers would be required to “defend and indemnify law enforcement officers from and against civil claims made against them in their official and individual capacities if the alleged conduct arose in the course and scope of their obligations and duties as law enforcement officers.” Employers would not have to defend an officer “in the event the law enforcement officer is convicted of, or pleads guilty to, criminal charges arising out of the same conduct.”
While police officers accused of misconduct and their attorneys would have full access to evidence, all records from police misconduct investigations would be closed under the Sunshine Law, except by court order or lawful subpoena. In other words, the records would be kept almost entirely secret from the public.
Walker said that keeping investigative records closed prevents the public from holding police officers and departments accountable.
“Let’s say there was an excessive force case and that part of it was covered in the news media. The press cannot report and the public cannot find out whether that officer was disciplined, and if so, what the discipline was,” Walker said. “So we don’t know whether the department is lax and very soft on excessive force cases or whether they have strict standards.”
Brian Millikan, a former police officer in the St. Louis Metropolitan Police Department and an attorney for multiple Missouri police unions, wrote the initial draft of Missouri’s law enforcement officer bill of rights. He defended the closure of misconduct records to the public.
“It’s no different than any other employment record; employment records are considered personnel matters. That’s not just for police officers, but that’s for really anybody,” Millikan said in a phone interview. “The reason for that is what you do at your job is really not meant for public consumption.”
Walker argued that provisions in law enforcement officer bills of rights “put together represent a whole set of special privileges—special privileges for police officers—privileges that people in other occupations do not enjoy,” adding that there is already an “unfair power imbalance” with a “natural preference to the views of the officer” in internal investigations.
Rights granted to police officers in internal investigations—such as a 24-hour waiting period before an interview, access to a complainant’s testimony before providing their own and the confidentiality of records—are not rights granted to the general public when accused of wrongdoing.
Critics also argue that giving police officers extra legal rights is antithetical to a bill of rights. The Bill of Rights of the Constitution protects the individual against the government, not government agents from individuals.
Millikan said that he does not believe the law enforcement officer bills of rights give police officers “special privileges” and that it instead ensures “due process.”
Millikan argued that a law enforcement officer bill of rights has been “needed for a long time,” since police officers are “subject to additional discipline up to and including termination” as a result of an internal investigation.
“Police officers are held to a higher standard, from just about any other job I can think of, and that’s fine—I don’t have any problem with that,” Millikan said. “But at the same time, because they’re so highly scrutinized, there should be a set of due process procedures in place to make sure it’s fair.”
Every department basically had different rules and procedures, he added, and the proposed bill “basically just uniforms it across the state.”
Protecting police budgets
In addition to the law enforcement officer bill of rights, the proposed bill explicitly protects the police budgets of municipalities. This comes amid growing calls to defund the police over the past year, including from St. Louis’s newly elected mayor, Tishaura Jones.
If a municipality decreases its law enforcement budget by “more than twelve percent relative to the proposed budgets of other departments of the political subdivision over a five year aggregate amount,” any taxpayer may initiate an action for injunctive relief—the funds would then be returned to the law enforcement budget in question, according to the bill.
Once the bill goes into effect, it would be practically impossible for local governments to defund police departments by significant amounts.
Police union lobbying efforts
The Missouri State Lodge Fraternal Order of Police, an umbrella organization for more than 26 police unions in Missouri, has worked for years to get a law enforcement officer bill of rights passed. MOFOP heavily lobbied for the bill in the last legislative session with the president, vice president and legislative director traveling to Jefferson City, the state's capital. The organization thanked representatives from the St. Louis Police Officers Association, St. Louis County Police Association and Kansas City Police Fraternal Order of Police for their efforts in writing and lobbying for the bill.
Notably, MOFOP wrote that Lt. Gov. Mike Kehoe was “instrumental in the passage of our bill” by “continually [asking] for updates on our bill throughout the legislative session and [putting] together some last-minute negotiations that helped get the bill necessary floor time in the final two days of session.”
“We’re talking about years in the making,” Millikan said. “It was a collective effort across the state from various organizations who represent police officers.”