The Kansas House Standing Committee on Corrections and Juvenile Justice has introduced an extraordinary bill that would allow citizens to be criminally charged if they bring abuse or misconduct charges against police officers are that later dismissed by the police department. They would be subject to a felony charge for perjury in such cases — a clear threat that will chill anyone considering such a charge in the future.
It is often hard to get people to come forward to make complaints against officers in fear of retaliation. Now, with this law, the state would be giving a perfect vehicle for such retaliation since most complaints are dismissed by police departments. Incidents of abuse are often a conflict between the officer’s statement and the alleged victim. In such circumstances, the officer’s account tends to prevail or at least the allegation is found unproven in such conflicts.
The language of the bill can be found here.
The poorly crafted bill is striking in its ambiguity. However, it appears to require prosecution and bar discretion on such referrals, stating “clear evidence that such complaint is false, such investigation shall be closed immediately and the law enforcement agency shall seek
criminal prosecution against the complainant for perjury.” (emphasis added). The “shall” language is usually meant to impose a mandatory, non-discretionary duty. What constitutes a “false” complaint is not defined.
The prohibitions under the law are equally problematic:
(f) A law enforcement agency shall not:
(1) Adopt any policy or regulation which prohibits the right of a law enforcement officer to file a lawsuit regarding a false complaint arising out of such officer’s duties as a law enforcement officer;
(2) investigate a complaint against a law enforcement officer for non work related civil matters;
(3) open a separate investigation of a complaint if another agency has investigated such complaint and found no evidence of misconduct on the part of the law enforcement officer; or
(4) solicit a civilian to file a complaint against a law enforcement officer. Solicitation shall not be construed to mean any follow-up of a complaint.
This seems to encourage not simply the criminal prosecution of complaining citizens but civil lawsuit by officers — a curious position in Kansas which has historically opposed civil litigation with cap awards and other limitations. Thus, even if a citizen is able to escape jail on the felony charge, he or she would be tapped for litigation costs in fighting a civil lawsuit.
Moreover, the bill effectively immunizes officers for any “non work related civil matters” from investigation. I have been a critic of the disciplinary actions meted out against public employees for views or associations in their private lives, including police officers (here and here). However, some civil disputes could reveal an officer with mental instability or emotional problems. This would bar even an investigation into such allegations.
Then there is section three. A prior investigation could have been limited, based on poor evidence, or reached the earlier conclusion based on changed testimony. There could be the subsequent discovery of a videotape or witness leading to a second investigation. However, that prior investigation would bar a subsequent investigation even when police investigators believe it is warranted. What could possibly be the public interest purpose of such an absolute bar?
It is equally troubling to see a prohibition on soliciting a civilian to file a complaint. In some cases police investigators will learn of abuse and try to encourage a citizen to file a complaint to start the process. Citizens often fear retaliation and it takes another officer to assure the citizen that there is nothing to fear in filing a complaint. That would now be prohibited in Kansas.
The Kansas law is part of a trend across the country of seeking to insulate officers from punishment or accusations. There has been a largely unsuccessful effort by prosecutors like Chicago’s Anita Alvarez to criminalize the videotaping of officers in public — the leading method for proving abuse. In Dallas, Dallas Police Chief David Brownrevealed a new policy that would require officers involved in a shooting to wait 72 hours before making a statement. The policy came after a scandal where a surveillance video showed one of Brown’s officers shooting a mentally ill suspect for no apparent reason. The video contradicted the officer’s testimony and undermined the charge against the victim. Brown’s solution was not greater disciplining and monitoring of officers but to impose a delay to allow officers to craft their statements. Kansas appears ready to go one better and actually expose citizens to felony charges and taking these other measures.
I would be very interested to know who drafted this legislation. That should be part of the public record but it is not. It is an ill-conceived and poorly written bill that seems designed to deter citizens in bringing these cases. It is curious effort for representatives of the public and undermines those police officers who want to weed out abusive members of the department.