Wednesday, March 25, 2015

The Michael Brown Over-Policed Rights Act (Federal)

 A BILL

          To provide for additional reporting from Law Enforcement Agencies and to provide a private cause of action against Law Enforcement Agencies that discriminate.
          Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled


SECTION 1. SHORT TITLE; TABLE OF CONTENTS
    (a) Short Title.--This Act may be cited as the "Michael Brown Over-Policed Rights Act of 2015".
    (b) Table of Contents.--The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
          TITLE I--UNIVERSAL REPORTING REQUIREMENTS
Sec. 101. Universal Reporting Requirements.
Sec. 102. Non-admissibility in certain actions.
Sec. 103. One-Time Universal Reporting Requirements.
Sec. 104. Information sworn-to by commanding officer.
Sec. 105. Federal Bureau of Investigation to report to the public such information as described therein.
          TITLE II--PRIVATE CAUSE OF ACTION AGAINST STATE, LOCAL, TRIBAL AND CONTRACTED LAW ENFORCEMENT AGENCIES
Sec. 201. Creating private cause of action.
Sec. 202. Defining an over-policed jurisdiction as violating the Equal Protection rights of the Citizens.  
Sec. 203. Courtroom procedures.
Sec. 204. Attorney General's option to enter suit.
Sec. 205. Setting the burden of proof and the findings by the court.
          TITLE III--CONDITIONS PLACED ON OVER-POLICED JURISDICTIONS AND ENFORCEMENT AND PENALTIES
Sec. 301. Penalties, conditions and probation.
Sec. 302. Volunteer observers.
Sec. 303. FBI to provide training materials for volunteer observers.
Sec. 304. Additional reporting requirements.
Sec. 305. Enforcement and penalties.
          TITLE IV--PETITION FOR TERMINATION AS OVER-POLICED JURISDICTION AND PROCEDURES
Sec. 401. Petition for Termination as Over-Policed Jurisdiction.
Sec. 402. Burden of proof and procedures.
          TITLE V--MISCELLANEOUS PROVISIONS, FUNDING, SEVERABILITY AND SAVINGS CLAUSE
Sec. 501. Appropriations.  
Sec. 502. Severability.
Sec. 503. Savings clause.  

SEC. 2. DEFINITIONS.
    In this Act:
(1) Law enforcement agency.--The term "law enforcement agency" means any Federal, State, local, or Indian tribal public agency engaged in the prevention, detection, or investigation of violations of criminal, immigration, or customs laws.
(2) Law enforcement agent.--The term "law enforcement agent" means any Federal, State, local, or Indian tribal official responsible for enforcing criminal, immigration, or customs laws, including police officers and other agents of a law enforcement agency, and also including any private contract employees with those duties.
(3) Indian tribe.--The term "Indian tribe" has the meaning given the term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
(4) Covered program.--The term "covered program" means any program or activity funded in whole or in part with funds made available under--
          (A) the Edward Byrne Memorial Justice Assistance Grant Program under part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.); and
          (B) the "Cops on the Beat" program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.), except that no program, project, or other activity specified in section 1701(b)(13) of such part shall be a covered program under this paragraph.
(5) State.--The term "State" means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.
(6) Unit of local government.--The term "unit of local government" means--
          (A) any city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State;
          (B) any law enforcement district or judicial enforcement district that--
               (i) is established under applicable State law; and
               (ii) has the authority to, in a manner independent of other State entities, establish a budget and impose taxes; or
          (C) any Indian tribe that performs law enforcement functions, as determined by the Secretary of the Interior.
(7) Weapon or other weapon.--"Weapon" or "other weapon" shall include any weapon used to subdue or inflict damage to a person.

TITLE I--UNIVERSAL REPORTING REQUIREMENTS
     Sec. 101. UNIVERSAL REPORTING REQUIREMENTS.  The Federal Bureau of Investigation ("FBI"), in the manner that agency shall prescribe by rule, shall obtain the following information from all state, local units of government and tribal law enforcement agencies of any size:
          (1)  The name, address, race, ethnicity and occupation (if known) of any person injured or killed by a firearm, taser, or other weapon designed to cause physical injury to, or which is used to subdue or control, persons, and which was fired by an officer in or contracted to that law enforcement agency.
          (2)  The name, address, race, ethnicity and rank of any law enforcement agent or privately contracted law enforcement agent who has shot or tazed a person with a gun or taser or other weapon designed to cause physical injury to, or which is used to subdue or control, persons during the preceding twelve months.
          (3)  Whether the police action described in subsection (1) of this section resulted in death, injury or medical treatment, specifying which, if any.
          (4)  The filing and disposition of any criminal or civil matters related to the use of force.
          (5)  The result of any internal investigation, including punishment, if any, meted out.
          (6)  The language minority status of any persons involved.
          (7)  Whether that officer has shot another person during his or her career as a law enforcement agent. If so, provide each instance, including, date, name of the law enforcement agency, reason for use of force, disposition of person targeted (legally and medically), and the disposition of any related criminal or civil matters.
          (8)  The number of shots fired at any person by any weapon utilized by law enforcement agents during the course of police activities in the jurisdiction, including the type of weapon.
          (9)  The number of target or practice shots taken by the law enforcement agency for training purposes during the preceding 12 months.
          (10) The number of full-time and part-time employees of the law enforcement agency.
          (11) The number of times a police officer in the law enforcement agency complained of physical injury requiring medical treatment because of interaction with the public in the course of police activities during the preceding twelve months.
          (12) The number of times a person or his or her representative in the relevant jurisdiction complained of death or physical injury requiring medical treatment because of interaction with officers in that law enforcement agency in the course of police activities during the preceding twelve months.
          (13) The number of felony arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
          (14) The number of misdemeanor arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
          (15) The number of other arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
          (16) The number of traffic stops in the jurisdiction, including the race, ethnicity and language minority status of the officer involved and the person stopped.
          (17) The number of Terry stops in the jurisdiction, including the race, ethnicity and language minority status of the officer involved and the person stopped.
          (18) The racial, ethnic and minority language breakdown of the law enforcement agency by percentage.
          (19) The percentage of police patrol vehicles fitted with working dash cams used by the law enforcement agency during the preceding twelve months.
          (20) The percentage of patrol officers fitted with working body cams used by the law enforcement agency during the preceding twelve months.
     Sec. 102.  To encourage accurate and prompt reporting, it is expressly provided that the report of any law enforcement agency prepared pursuant to this Act may not be used as evidence against any individual police officer or officers in any civil, or administrative proceeding. Provided, however, that any information contained in the report that can be obtained elsewhere shall not be subject to this restriction.
     Sec. 103.   ONE-TIME UNIVERSAL REPORTING REQUIREMENT.  The Federal Bureau of Investigation ("FBI") shall obtain the items described in Section 101(1)-(20) above for each of the proceeding five years in the manner the FBI shall prescribe by rule.
     Sec. 104.  Each Section 101 report will be signed by the law enforcement agency's commanding officer and, based upon information and belief, sworn to be true and correct. Failure to comply with the universal reporting requirements described above shall subject that law enforcement agency to a rebuttable presumption that the law enforcement agency is an Over-Policed Rights Act Jurisdiction as described in Title II. Additionally, if a law enforcement agency should refuse to comply, the Attorney General shall reallocate to another law enforcement agency any federal assistance or subsidy pursuant to any covered program.
     Sec. 105.  The Federal Bureau of Investigation shall report the information provided pursuant to subsections (1)-(20) of this Title each year to the public.

TITLE II--PRIVATE CAUSE OF ACTION AGAINST STATE, LOCAL, TRIBAL AND CONTRACTED LAW ENFORCEMENT AGENCIES
     Sec. 201.  A natural person of the United States shall have the right to file an action in federal court seeking a declaration that a law enforcement agency in the jurisdiction in which the complainant resides is an over-policed jurisdiction as that term is defined in Section 202 of this Title. Venue shall lie in the district of the complaining party's residence.
     Sec. 202.  As used in this section, an over-policed jurisdiction is one that has shown a long-standing pattern of abuse, brutality or racial or language minority animus of at least eighteen month's duration. Any party who brings an action pursuant to this Title may show a long-standing pattern of abuse, brutality or racial or language minority animus using the information provided in Section 1 herein or any other reliable statistics which demonstrate that the law enforcement agency has violated the Equal Protection rights of those in their jurisdiction by arresting, stopping, harming, detaining, issuing citations against, failing to hire, property seizures of, killing or assaulting members of a racial, ethnic, minority language group or other suspect class in a statistically significant greater percentage than that group is represented in that jurisdiction's population. A party who brings an action pursuant to this Title may make this showing without proof of willful or malicious action by the law enforcement agency.
     Sec. 203.  COURT PROCEDURES; STANDING AND WAIVER OF FEES.  By virtue of a person's residence in a jurisdiction and status as a member of the allegedly aggrieved racial, ethnic or language minority class, he or she is deemed to have standing to sue. Every person in a jurisdiction is affected in one way or another by the policing carried out there.
          (1) Filing fees and any trial or witness fees for this action are waived. Complainant will be responsible for any fees necessary to effectuate Service of Process on the policing jurisdiction. The Complaint and all subsequent pleadings will be prepared and argued by an attorney in good standing in that federal district. The parties shall follow current federal rules of civil procedure except as described herein or amended for good cause by the federal district court.  
          (2)  JURISDICTION; EXHAUSTION OF ADMINISTRATIVE OR OTHER REMEDIES.  The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this Act and shall exercise the same without regard to whether a person asserting rights under the provisions herein shall have exhausted any administrative or other remedies that may be provided by law. Trial will proceed before the judge without a jury.
          (3)  SPEEDY TRIAL PROVISION.  A hearing and disposition of this matter shall occur within six months after the law enforcement agency has filed its Answer. The parties shall provide expedited discovery. No later than one month after the law enforcement agency has filed its Answer, the court shall convene the parties to discuss discovery and case management. Federal Rule of Civil Procedure 11 sanctions shall apply to all proceedings herein, as will the inherent contempt powers of the court. Federal Rule of Civil Procedure 12 shall not, except that a law enforcement agency may file a Motion to Dismiss if the complainant is not a resident of the jurisdiction.  
          (4)  CONSOLIDATION OF CASES.  The court may consolidate multiple independent complaints for hearing. One continuance of no more than one month's duration may be granted by the court for good cause shown.  
          (5)  REFUSAL TO COMPLY WITH REPORTING REQUIREMENTS; REBUTTABLE PRESUMPTION.  If the law enforcement agency has refused to comply with the Universal Reporting Requirements described in Title I of this Act, then there shall be a rebuttable presumption that the law enforcement agency is an over-policed jurisdiction. The presumption may be rebutted if the law enforcement agency fully complies with the Universal Reporting Requirements described in Title I of this Act. The complaint brought by virtue of this Title may proceed even if compliance is satisfied.
     Sec. 204.  At the election of the Attorney General, the Department of Justice may enter the suit on behalf of the Complainant; however, if the Complainant voices an objection, he or she will be allowed to proceed with the Department of Justice appearing as a friend of the court, or the Department of Justice may withdraw, if it elects to do so. At any time during the proceedings and after adjudication, the Attorney General may appoint an agency or subdivision unit of local or state government authority as its designee to appear at hearings and receive reports and take all actions available to the Attorney General and Department of Justice under this Act. The designee will be reimbursed for all out-of-pocket expenditures.
     Sec. 205.  If the court, after hearing, finds by a preponderance of the evidence that the law enforcement agency has had a long-standing pattern of abuse, brutality or racial or language minority animus, which may be proved statistically and without direct evidence of intentional malice, then the court shall designate that law enforcement agency as a Federal Over-Policed Rights Act jurisdiction. The law enforcement agency may appeal, but there shall be no stay of this Act pending appeal. The complainant shall also have the right to appeal.

TITLE III--CONDITIONS PLACED ON OVER-POLICED JURISDICTIONS AND ENFORCEMENT AND PENALTIES
     Sec. 301.  PENALTIES, CONDITIONS AND PROBATION.  This Act is not intended to limit the authority of a federal district court judge to tailor his or her order to a given situation. However, a designation as an Over-Policed Rights Act jurisdiction shall, at a minimum, result in the following, unless good cause is shown:
          (1)  The court shall appoint volunteer observers of good moral character who reside in the jurisdiction to monitor the policing jurisdiction as described herein.  
          (2)  The specific reporting requirements for an Over-Policed Rights Act jurisdiction, as described below, shall be enforced.
          (3)  The Over-Policed Rights Act jurisdiction shall forfeit all federal "militarized" hardware, including only vehicles and weapons.
          (4)  The Over-Policed Rights Act jurisdiction shall be subject to audits at any time by the Department of Justice or the Federal Bureau of Investigation.
          (5)  The Over-Policed Rights Act jurisdiction shall designate a person to act as liaison between the unit and the federal court system, the Department of Justice and any volunteer observer organizations.
          (6)  If the court finds a long-standing pattern of abuse, brutality or racial or language minority animus regarding the law enforcement agency's temporary detention of arrestees, then the court will order all personnel in the holding facility to wear body cameras and shall consider ordering (a) twenty-four hour video monitoring in cell areas, (b) the employment of additional law enforcement agents or other personnel, including those trained in first aid, (c) specific changes to detention protocols, (d) the employment of Spanish-speaking (or other language of need) law enforcement agents, (e) physical changes or additions to the facilities, and (f) the use of volunteer observers in or around the cell area.
          (7)  The court should consider the effectiveness of body cameras for all law enforcement agents on patrol and their supervisors. If certain geographic areas have presented particular problems and others have not, the court shall order that law enforcement agents use body cameras in the problem areas.
          (8)  The court shall order that any law enforcement agent in the law enforcement agency involved in using his or her weapon against a person shall have a blood screen to include testing for illegal substances including steroids as soon as possible and no later than four hours after the event.
          (9)  The court shall audit the public complaint system used by the policing jurisdiction and require changes if necessary.
          (10) The court shall ensure that the law enforcement agency has a Citizens' Review Board in place.
     Sec. 302.  Volunteer observers shall be authorized to—
          (1) enter and attend at any place in which law enforcement agents of the law enforcement agency are conducting official business for the purpose of observing and documenting; provided, however, that the court may order that certain investigations involving organized crime or other matters shall not be subject to volunteer observation; and
          (2) ride along in any police cruiser or other police conveyance.
          (3) may carry and use video cameras or any other reasonable recording device.
          (4) observe and report to the Attorney General or the appropriate designee, and if requested, to the court. Observers are directed to observe only, and if any problems occur, either the observer or the law enforcement agency may report same to the court.
          (5) Video or other recordings, including written reports made by volunteer observers shall be maintained by the Department of Justice or its designee.  
     Sec. 303.  The Federal Bureau of Investigation shall make available training materials for use by the Volunteer Observers. This can be accomplished by providing a link to a web seminar on the FBI website.
     Sec. 304.  In addition to the Universal Reporting Requirements described in Title I, an Over-Policed Rights Act jurisdiction shall also meet the following reporting requirements and provide to the DOJ or its designee—
          (1) a description of every instance in which a law enforcement agent during the performance of his or her professional duties unholsters a weapon of any kind in preparation for its use on any person;
          (2) a description of any assault or battery committed by any law enforcement agent of the law enforcement agency during his or her professional duties;
          (3) a list of all incidents in which a police encounter escalates. This would include any situation in which a resisting arrest charge, or that jurisdiction's equivalent, is the most serious charge filed against a person;
          (4) a list of all injuries suffered by arrestees or detainees or persons released, including those observable injuries that were not caused by, or occurred during, the arrest or detainment;
          (5) any lists or reports required by the court tailored to the court's findings or any reasonable requests of the DOJ or designee. The final arbiter of reasonableness for the purposes of this Act will be the court;
          (6) a list of any significant changes to the law enforcement agency's procedures or protocols;
          (7) a copy of all blood screens conducted pursuant to Section 301(8);
          (8) and a videotape (including audio) of every interrogation conducted by that law enforcement agency or by anyone at the behest of that law enforcement agency, including investigations conducted by any joint task force or similar operations.  
     Sec. 305.  ENFORCEMENT AND PENALTIES.  A law enforcement agent of an Over-Policed Rights Act jurisdiction who fails to report an action as described in Section 304(1)-(4) commits a felony. An Over-Policed Rights Act jurisdiction that fails to report as provided for in Section 304(5)-(8) is subject to contempt and the contempt powers of the federal court. The Department of Justice or its designee may investigate any instance involving an unholstered weapon or an assault or a battery, and it or its designee shall investigate every instance in which the law enforcement agency fired a shot, employed a taser or other weapon at a person.

TITLE IV--PETITION FOR TERMINATION AS OVER-POLICED JURISDICTION AND PROCEDURES
     Sec. 401.  PETITION FOR TERMINATION.  After the expiration of one year or any longer term set by the court, the law enforcement agency may petition the court for relief from the designation as a Federal Over-Policed Rights Act jurisdiction.
     Sec. 402.  If by a preponderance of the evidence the court finds that the law enforcement agency has followed the terms of its order and the strictures of this Act, has implemented any and all reasonable and narrowly-tailored recommendations made by the Department of Justice and found acceptable by the court, and if the court finds that the police unit has been positively changed and is now focused on proper law enforcement techniques, then the court shall lift the Federal Over-Policed Rights Act designation. In the alternative, the court may designate a reasonable term of probation if certain requirements have yet to be met.

TITLE V--MISCELLANEOUS PROVISIONS, FUNDING, SEVERABILITY AND SAVINGS CLAUSE
     Sec. 501.  MISCELLANEOUS; FUNDING. Appropriations for this act will come from the Department of Justice's General Fund every year without vote. Provided, however, the Department of Justice may use funds obtained pursuant to 28 U.S. Code § 524(c). The Attorney General shall transmit to Congress a report indicating the disposition of any § 524(c) funds used hereunder in the same manner as that Section provides.
     Sec. 502.  SEVERABILITY.  If any provision of this Act or the application of it to any person or circumstances is held invalid, the remainder of this Act and the application of its provisions to other persons not similarly situated or to other circumstances shall not be affected thereby.
     Sec. 503.  SAVINGS CLAUSE.  Nothing in this Act shall be construed--
          (1) to limit legal or administrative remedies under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), section 210401 of the Violent Crime
Control Law Enforcement Act of 1994 (42 U.S.C. 14141), the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq.), or title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.);
          (2) to affect any Federal, State, unit of local government or tribal law that applies to an Indian tribe because of the political status of the tribe; or
          (3) to waive the sovereign immunity of an Indian tribe without the consent of the tribe.

Monday, September 29, 2014

KNOW THEIR NAMES ...

Know Their Names:

YOUR ALT TEXT HEREKajieme Powell, 25, killed by St. Louis Metropolitan police.
YOUR ALT TEXT HEREAndrew Scott Gaynier, 26, killed by Dallas police.
YOUR ALT TEXT HEREJohn Crawford, 22, killed by Ohio police in Walmart.
YOUR ALT TEXT HEREDiana Showman, 19-year-old suffering with bipolar disorder, killed by San Jose police.
YOUR ALT TEXT HEREEzell Ford, 25, killed by South Los Angeles police.
YOUR ALT TEXT HEREDillon Taylor, 20, killed by Salt Lake City police.
YOUR ALT TEXT HEREDante Parker, 36 year old father of five, killed by San Bernardino County Sherriff deputies.
YOUR ALT TEXT HEREOmar Abrego, 37, beaten to death by Los Angeles police.
YOUR ALT TEXT HEREJacinto Zavala, 21-year-old military veteran, killed by Greeley, Colorado police.
YOUR ALT TEXT HEREMichelle Cusseaux, 50-year-old mentally challenged woman, killed by the Phoenix police.
YOUR ALT TEXT HEREJoseph Jennings, 18-year-old suicidal teen, killed by police in Ottawa, KS.
YOUR ALT TEXT HEREGuillermo Canas, 36, killed by the St. Paul Police.
YOUR ALT TEXT HEREMaria Godinez, 22, killed by Orlando police who then arrested someone else for her murder.
YOUR ALT TEXT HEREJoshua Paul, a 31-year-old from Carpentersville, Illinois, beaten to death by the police.
YOUR ALT TEXT HEREDarren Hunt, 22, killed by police in Utah.

Know Their Faces:



Three of the people killed by police since Michael Brown's death.


FIFTH DRAFT OF MICHAEL BROWN OVER-POLICED RIGHTS ACT OF 2015 (with commentary)

Commentary


Ferguson, Missouri slapped us all in the face. It showed the need for a mechanism with which the people can effectively police the police. Of the 53 police officers in Ferguson, 50 are white. For every 1 citizen in that policing jurisdiction, law enforcement issued 1.5 warrants per year. To say the citizens of Ferguson were "over-policed" is an understatement. Thousands in Ferguson knew they had a policing problem. Their voices went unheard.
That is likely because there are thousands and thousands of local and state policing jurisdictions in America, and only one Justice Department. (Remember, the DOJ has to oversee all of these policing jurisdictions while enforcing all of our federal statutes, including voting laws, financial institution laws, federal criminal laws, anti-discrimination laws, environmental laws, etc.). At this time, the DOJ has more ongoing investigations of policing jurisdictions than at any time during its history.
Moreover, what would happen if a Republican became President and appointed a Republican Attorney General and more Republican judges? Can we expect a Republican Attorney General to administer the laws providing for equal protection of the people from race-based policing? The ability to check race-based policing that we have now through the soon-to-retire Attorney General Eric Holder would likely be eliminated.  
We see the Republican Party, the Tea Party and the Republican propaganda machine, especially the Fox News Channel, subtly but steadily politicizing race issues, making race hatred and fear part of their unspoken party platform. We see through their new Southern Strategy, and we don't like it. With this new law, we hope to create a cure for, a stick to wield against, and a deterrent to race-based policing. We greatly appreciate your help in making our law stronger! The Michael Brown Federal Over-Policed Rights Act of 2015 has undergone numerous changes and now four complete revisions. That was only possible because you took the time to make it better. Thank you!
Finally, we are under no illusions that the law that we deliver to legislators will be the same law enacted. Similarly, we are under no illusions that the law will be enacted in 2015. But maybe by 2017 ...

The Michael Brown Over-Policed Rights Act


Section 1
     (a)  UNIVERSAL REPORTING REQUIREMENTS.  All policing jurisdictions shall report the following information every twelve months to the Federal Bureau of Investigation ("FBI") in the manner that agency shall prescribe by rule:
COMMENTARY:  One of the goals of this statute is to obtain from law enforcement the kind of information that we should already have. There is currently a procedure with which policing jurisdictions report some information to the FBI. We want more. Additionally, by using the structure already in existence (or easily reconfigured by the FBI), we can piggyback on it. We felt that 12 months was the appropriate time frame, as it is easy to understand, and it is the time frame that is now used. Also, policing jurisdictions are familiar with "annual reports." We used the term "policing jurisdiction," which is defined in the statute to include all state and local police units of any size, because the people within the jurisdiction are given the right to sue later in the statute.
(1)  The name, address, race and occupation (if known) of any person injured or killed by a firearm, taser, or other weapon designed to cause physical injury to, or which is used to subdue or control, persons, and which was fired by an officer of that policing jurisdiction.
(2)  The name, address, race and rank of any officer who has shot or tazed a person with a gun or taser or other weapon designed to cause physical injury to, or which is used to subdue or control, persons during the preceding twelve months.
COMMENTARY:  We want to know who is causing harm to whom. By getting the race of the parties, we provide evidence for the right to sue contained in the next section of the statute.
(3)  Whether the police action described in subsection (1) of this section resulted in death, injury or medical treatment, specifying which, if any.
(4)  The filing and disposition of any criminal or civil matters related to the use of force.
(5)  The result of any internal investigation, including punishment, if any, meted out.
(6)  The language minority status of any persons involved.
(7)  Whether that officer has shot another person during his or her career as a police officer. If so, provide each instance, including, date, policing jurisdiction, reason for use of force, disposition of person targeted (legally and medically), and the disposition of any related criminal or civil matters.
(8)  The number of shots fired at any person by any weapon during the course of police activities in the policing jurisdiction, including the type of weapon.
(9)  The number of target or practice shots taken by the policing jurisdiction for training purposes during the preceding 12 months.
COMMENTARY:  There has been some questions raised regarding subsection 9. We want to make sure that the police are properly trained to use their weapons. On firing ranges, they learn gun discipline. If the policing jurisdiction doesn't already have it, then this provision should spur them into armory discipline by keeping track of rounds and weapons.
(10) The number of full-time and part-time employees of the policing jurisdiction.
(11) The number of times a police officer in the policing jurisdiction complained of physical injury requiring medical treatment because of interaction with the public in the course of police activities during the preceding twelve months.
(12) The number of times a person or his or her representative in the policing jurisdiction complained of physical injury requiring medical treatment or death because of interaction with officers in that policing jurisdiction in the course of police activities during the preceding twelve months.
COMMENTARY:  With subsections 11 and 12, we are asking for all injuries, not just those inflicted by a weapon. They would include people like Eric Garner who died from a chokehold. If there is a huge disparity when you compare police to civilian injuries, then you have a problem. If you have a huge disparity in the injury rate of one policing jurisdiction compared to the injury rates of others of similar size, then that is another problem. If there is a disparity in the number of people injured of a certain race, ethnic or minority language status compared to how that population is represented in the jursidiction, there's yet another problem.
 
(13) The number of felony arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
(14) The number of misdemeanor arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
(15) The number of other arrests in the jurisdiction, including the race, ethnicity and language minority status of the arresting officer and the person arrested.
(16) The number of traffic stops in the jurisdiction, including the race, ethnicity and language minority status of the officer involved and the person stopped.
(17) The number of Terry stops in the jurisdiction, including the race, ethnicity and language minority status of the officer involved and the person stopped.
COMMENTARY:  Besides being information that we should already have, the data in subsections 13 - 17 may also provide the kind of evidence needed by a litigant filing an action under Section 2.
(18) The racial, ethnic and minority language breakdown of the policing jurisdiction by percentage.
(19) The percentage of police patrol vehicles fitted with working dash cams used in the policing jurisdiction during the preceding twelve months.
(20) The percentage of patrol officers fitted with working body cams used in the policing jurisdiction during the preceding twelve months.
     (b)  To encourage accurate and prompt reporting, it is expressly provided that the report of any policing jurisdiction prepared pursuant to this Act may not be used as evidence against any individual police officer or officers in any civil, or administrative proceeding. Provided, however, that any information contained in the report that can be obtained elsewhere shall not be subject to this restriction.
COMMENTARY:  There has been a question raised about why we will not allow this information to be used in lawsuits involving individual officers. Our goal is to control entire police units, not individual officers. If the whole policing jurisdiction is under control, then most of the individual officers will fall in line. Moreover, we need good data. This is a way to obtain good data that has been traditionally used in the law. Finally, all of the evidence would be available elsewhere or through other witnesses in any event.
    (c)  ONE-TIME UNIVERSAL REPORTING REQUIREMENT.  All policing jurisdictions shall report the items described above in (a)(1)-(18) for each of the preceding five years to the Federal Bureau of Investigation ("FBI") in the manner that agency shall prescribe by rule.
COMMENTARY:  The information we are requesting is so important that we feel that we should have it for the preceding five years. This will provide a baseline for going forward. Additionally, the "long-standing pattern of abuse of at least 18-months duration" that is the standard in the next section will immediately come into play. The commanding officer of the unit will have to swear based on the best of his or her knowledge that the information is true. Of course, the commanding officer would also be subject to cross-examination to ensure that those answers were true and correct.
    (d)  Each Section 1 report will be signed by the police unit's commanding officer and, based upon information and belief, sworn to be true and correct. Failure to comply with the universal reporting requirements described above shall subject that policing jurisdiction to designation as a Federal Over-Policed Rights Act Jurisdiction and subject it to forfeiture of any or all federal funding or equipment. The Department of Justice shall have the authority to enforce Section 1 of this Act.
     (e)  The Federal Bureau of Investigation shall report the information provided pursuant to subsections (a)(1)-(18) each year to the public.
     (f)  DEFINITIONS.  "Policing jurisdiction" shall include all state and local law enforcement entities of any size, including any officers privately contracted to provide law enforcement services by a political subdivision. "Weapon" or "other weapon" shall include any weapon used to subdue or inflict damage to a person.

Section 2
     (a)  A natural person residing in a policing jurisdiction shall have the right to file an action in federal court seeking a declaration that the policing jurisdiction in which the complainant resides is an over-policed jurisdiction as that term is defined in Section 2(b) of this Act. Venue shall lie in the district of the complaining party's residence.
COMMENTARY:  This is the second goal of the statute. It gives people the power to police the police. This entire Act has its roots in The Voting Rights Act of 1965. In the VRA, there is one section that allows people to file suit. So, although our right to sue might seem "out there," it is actually rooted in a strong way to something similar on the books since 1965. We decided on the term "natural person" to allow anyone in the jurisdiction, whether citizen, resident alien or undocumented American, to file a complaint.
    (b) As used in this section, an over-policed jurisdiction is one that has shown a long-standing pattern of abuse, brutality or racial or language minority animus of at least eighteen month's duration. Any party who brings an action pursuant to Section 2(a) may show a long-standing pattern of abuse, brutality or racial or language minority animus using the information provided in Section 1 herein or any other reliable statistics which demonstrate that the policing jurisdiction has violated the Equal Protection rights of those in their jurisdiction by arresting, stopping, harming, detaining, issuing citations against, failing to hire, property seizures of, killing or assaulting members of a racial, ethnic or minority language group in a statistically significant greater percentage than that group is represented in that jurisdiction's population. A party who brings an action pursuant to Section 2(a) of this Act may make this showing without proof of willful action by the policing jurisdiction.
COMMENTARY:  We have re-worked this section multiple times and feel it is now very strong. There has been questions about the length of time needed to show a pattern of abuse or brutality. We felt that a full 18 months was necessary to avoid too much statistical noise. A six-month period might be too short, as some policing jurisdictions in Florida and Colorado, for example, face seasonal pressures. With an eighteen-month term, it is harder for the policing jurisdiction to claim that they "just had a bad year." The law is based on statistics. If you are going to stop or arrest minorities or specific ethnicities in a significantly greater percentage than they are represented in the community, your jurisdiction runs the risk of the punishment described below.
 
     (c)   STANDING AND WAIVER OF FEES.  By virtue of a person's residence in a jurisdiction and status as a member of the allegedly aggrieved racial, ethnic or language minority class, he or she is deemed to have standing to sue. Every person in a jurisdiction is affected in one way or another by the policing carried out there. Filing fees and any trial or witness fees for this action are waived. Complainant will be responsible for any fees necessary to effectuate Service of Process on the policing jurisdiction. The Complaint and all subsequent pleadings will be prepared and argued by an attorney in good standing in that federal district and follow current federal rules of civil procedure except as described herein or amended for good cause by the federal district court.  
COMMENTARY:  Our first draft permitted anyone to file suit even if they were not a member of the "allegedly aggrieved racial, ethnic or language minority class." However, we felt that the law would be stronger if standing was limited to those individuals. There are "suspect classes" under constitutional law who have received the brunt of generations of prejudice and discrimination, much of which continues to this day. Simply stated, courts allow the Government to go a little further in protecting them for that reason.
Other issues raised about this subsection include the waiver of fees and the requirement of an attorney. First, we want to encourage the use of this statute by indigent persons. Second, we want to send the message that we want to encourage the use of this statute by indigent persons. "WAIVER OF FEES" is included in the title/description of the subsection to send the message loud and clear that you shouldn't have to pay a fee to hold your Government accountable. Moreover, indigent persons face the brunt of abusive and brutal policing techniques more than anyone else.
As for the requirement of an attorney, we believe that this will be a fairly complex litigation, and an attorney will be necessary to present the evidence to a judge. Moreover, this is a hurdle that should keep out most frivolous claims. The provisions may seem contradictory, and they are, but we believe that there will be lawyers who will take on a case pro bono when there is patent statistical proof of over Over-Policing.
    (d)  JURISDICTION; EXHAUSTION OF ADMINISTRATIVE OR OTHER REMEDIES.  The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this Act and shall exercise the same without regard to whether a person asserting rights under the provisions herein shall have exhausted any administrative or other remedies that may be provided by law. Trial will proceed before the judge without a jury.
     (e)  SPEEDY TRIAL PROVISION.  A hearing and disposition of this matter shall occur within six months after the policing jurisdiction has filed its Answer. The parties shall provide expedited discovery. No later than one month after the policing jurisdiction has filed its Answer, the court shall convene the parties to discuss discovery and case management. Federal Rule of Civil Procedure 11 sanctions shall apply to all proceedings herein, as will the inherent contempt powers of the court. Federal Rule of Civil Procedure 12 shall not, except that a policing jurisdiction may file a Motion to Dismiss if the complainant is not a resident of the jurisdiction.  
COMMENTARY:  This provision has sparked some controversy, as we have dabbled in admittedly radical changes to the civil procedure. As one astute commentator noted, you better have a good reason for doing it. We think we do. We have taken FRCivP 12 out of the equation. It is a rule that allows defense attorneys to file multiple kinds of motions to dismiss. If the policing jurisdiction is allowed to demand hearing after hearing, the case could drag out for years. That's also why we want to require a speedy trial. If it is a dangerous jurisdiction, the case should be heard as soon as possible so corrections can be made. If it is not, the matter should be resolved as quickly as possible at the least amount of expense.
Many federal jurisdictions have experimented with "rocket dockets" that move cases along very quickly. Because of that, these procedures will not be as unique as they may seem. Finally, Federal Rule of Civil Procedure 11 and contempt powers are additional buffers against frivolous lawsuits.
    (f)  CONSOLIDATION OF CASES.  The court may consolidate multiple independent complaints for hearing. One continuance of no more than one month's duration may be granted by the court for good cause shown.  
     (g)  At the election of the Attorney General, the Department of Justice may enter the suit on behalf of the Complainant; however, if the Complainant voices an objection, he or she will be allowed to proceed with the Department of Justice appearing as a friend of the court, or the Department of Justice may withdraw, if it elects to do so. At any time during the proceedings and after adjudication, the Attorney General may appoint a local or state government authority as its designee to appear at hearings and receive reports and take all actions available to the Attorney General and Department of Justice under this Act. The designee will be reimbursed for all out-of-pocket expenditures.
COMMENTARY:  According to reports, there were 18,000 policing jurisdictions in the United States in 2010. There's only one Department of Justice. It cannot possibly "police" that many policing jurisdictions. Yet, the DoJ is handling more cases like this than at any other time in its history.
Subsection g allows the DoJ to opt into a lawsuit. The AG can also elect to leave the case in the hands of a capable private litigant, conserving the Department's resources for other battles. This would likely occur in a case being handled, for example, by a team of lawyers from the NAACP or the ACLU of New York.
Additionally, if you don't want an Edwin Meese or an Alberto Gonzales partnering up in your lawsuit, you can object. In that case, the DoJ can file briefs but is not a full partner in the litigation. The Attorney General can appoint a worthy state government counterpart to oversee the case as its "designee." This might be a state agency or even the state police, if it is not compromised. Again, this is to conserve resources.
     
     (h)  If the court, after hearing, finds by a preponderance of the evidence that the police unit has had a long-standing pattern of abuse, brutality or racial or language minority animus, which may be proved statistically and without direct evidence of intentional malice, then the court shall designate that policing jurisdiction as a Federal Over-Policed Rights Act jurisdiction. The policing jurisdiction may appeal, but there shall be no stay of this Act pending appeal. The complainant shall also have the right to appeal.

Section 3
     (a)  PENALTIES, CONDITIONS AND PROBATION.  This Act is not intended to limit the authority of a federal district court judge to tailor his or her order to a given situation. However, a designation as an Over-Policed Rights Act jurisdiction shall, at a minimum, result in the following, unless good cause is shown:
COMMENTARY:  The court has heard the evidence. The judge will likely know what best to do about it. Every case is different, and we don't want to restrict, in too forward a manner, a judge's first-person ability to tailor specific punishments and conditions for the situation. On the other hand, we don't want a Republican judge to give a slap on the wrist, so we have set "sentencing minimums."
 
          (1)  The court shall appoint volunteer observers of good moral character who reside in the jurisdiction to monitor the policing jurisdiction as described herein.
COMMENTARY:  Another goal of this statute is to deter bad policing. We don't want to have to go to court in the first place. Knowing that an adjudication as a Federal Over-Policed Rights Act jurisdiction is a possibility, policing jurisdictions are persuaded to change their practices. Perhaps they institute their own in-house training that favors evidence-based policing over race- or ethnicity-based policing. Perhaps they hire a more diverse police force. Perhaps they keep weekly, monthly and semi-annual logs to make sure that they are not, even unwittingly, discriminating against a segment of their population. This law is the stick that might prompt these actions. Can you imagine a mostly white police force in Phoenix having Hispanics ride along on every call? So, it is hoped that this statute will be a cure, but also a stick.
 
          (2)  The specific reporting requirements for an Over-Policed Rights Act jurisdiction, as described below, shall be enforced.
          (3)  The Over-Policed Rights Act jurisdiction shall forfeit all federal "militarized" hardware, including only vehicles and weapons.
COMMENTARY:  Some have suggested that policing jurisdictions that have violated this law should lose all federal support and forfeit everything they have received from the Federal Government. That is certainly an option that we considered in drafting and amending this law. However, our primary goal is to change policing jurisdictions; punishment is secondary. Punishment can come from individual civil lawsuits and internal actions. We think the policing jurisdiction should forfeit all of its military hardware obtained from the Federal Government, as the jurisdiction has shown that that equipment is dangerous in their hands. On the other hand, items like file cabinets and communications equipment obtained from the Federal Government should remain in the jurisdiction. We still want them to be able to their job.
         (4)  The policing jurisdiction shall be subject to audits at any time by the Department of Justice or the Federal Bureau of Investigation.
          (5)  The policing jurisdiction shall designate a person to act as liaison between the unit and the federal court system, the Department of Justice and any volunteer observer organizations.
          (6)  If the court finds a long-standing pattern of abuse, brutality or racial or language minority animus regarding the police unit's temporary detention of arrestees, then the court will order all police personnel in the holding facility to wear body cameras and shall consider ordering (i) twenty-four hour video monitoring in cell areas, (ii) the employment of additional officers, including those trained in first aid, (iii) specific changes to detention protocols, (iv) the employment of Spanish-speaking (or other language of need) officers, (v) physical changes or additions to the facilities, and (vi) the use of volunteer observers in or around the cell area.  
COMMENTARY:  There have been suggestions that we force every policing jurisdiction in the country to go immediately to body cams on every officer on patrol. This is a fantastic idea! At this point, however, we think that that is untenable for this statute. There are, after all, over 18,000 state and local policing jurisdictions in the country with hundreds of thousands of patrol officers. The cost is too much for this bill, considering all of the other costs related to this law if it is passed.
That idea is perfect for a bill of its own. However, there are significant constitutionality questions involved in the Federal Government ordering state actors to buy something when the majority of them have, at least to that point, done nothing wrong. On the other hand, body cams are perfect for the judge to order in one of these cases. They can be cure and punishment all in one. We think body cams for police are the wave of the future, much like dash cams were once the wave of the future, but we need to write this law as if it would be voted on during the next legislative session.
   
          (7)  The court should consider the effectiveness of body cameras for all officers on patrol and their supervisors. If certain geographic areas have presented particular problems and others have not, the court shall order that police officers use body cameras in the problem areas.
          (8)  The court shall order that any officer in the policing jurisdiction involved in using his or her weapon against a person shall have a blood screen to include testing for illegal substances including steroids as soon as possible and no later than four hours after the event.
          (9)  The court shall audit the public complaint system used by the policing jurisdiction and require changes if necessary.
          (10) The court shall ensure that the policing jurisdiction has a Citizens' Review Board in place.
     (b)  Volunteer observers shall be authorized to—
          (1) enter and attend at any place in which officers of the policing jurisdiction are conducting official business for the purpose of observing and documenting; provided, however, that the court may order that certain investigations involving organized crime or other matters shall not be subject to volunteer observation; and
          (2) ride along in any police cruiser or other police conveyance.
COMMENTARY:  We have appropriated the idea for Volunteer Observers directly from The Voting Rights Act of 1965. In other words, it is nothing new and should not be too much "change" for people to handle.
The difference between the VRA and this law--and it is a huge difference--is that Voting Rights Act observers are called into action usually for only 12 to 16 hours per day for a couple weeks. Our law allows for observation 24 hours per day for 365 days. Posters have wondered, "Where will these Volunteer Observers come from?" That's a great question!
There are multiple chapters of the NAACP in most major cities. Most towns of any significant size have chapters as well. The ACLU has branches in every state. La Raza and Muslim and Jewish organizations cross the nation. Even Senior Citizens would probably enjoy the excitement and the company. Not every hour or every patrol will be staffed by volunteer observers, but an organization like the NAACP and the ACLU, getting suggestions from the Department of Justice, can cover the "problem areas." For example, if there are too many suicides and injuries in the county detention facilities, then they can man those posts 24/7.
If there's a problem neighborhood in which most of the police's race-based techniques have been used, then that neighborhood will be manned. We cannot expect to pay for this much manpower and womanpower. That's why they are volunteers. It is an available option. Additionaly, as an intended consequence of this provision, it is hoped that after riding along with civilians for a year, the police will be "softened" to their community.

          (3) may carry and use video cameras or any other reasonable recording device.
          (4) observe and report to the Attorney General or the appropriate designee, and if requested, to the court. Observers are directed to observe only, and if any problems occur, either the observer or the police unit may report same to the court.  
          (5) Video or other recordings, including written reports made by volunteer observers shall be maintained by the Department of Justice or its designee.  
     (c)  The Federal Bureau of Investigation shall make available training materials for use by the Volunteer Observers.
COMMENTARY:  This is envisioned to be something as simple as a link on the FBI website that provides a short tutorial on "The Do's and Don't's of Volunteer Observation."

     (d)  REPORTING REQUIREMENTS.  In addition to the Universal Reporting Requirements described above, an Over-Policed Rights Act jurisdiction shall also meet the following reporting requirements and provide to the DOJ or its designee—
          (1) a description of every instance in which an officer during the performance of his or her professional duties unholsters a weapon of any kind in preparation for its use on any person;
          (2) a description of any assault or battery committed by any officer of the policing jurisdiction during his or her professional duties;
COMMENTARY:  Police are taught to enforce assault and battery laws. They know what they look like.
         (3) a list of all incidents in which a police encounter escalates. This would include any situation in which a resisting arrest charge, or that policing jurisdiction's equivalent, is the most serious charge filed against a person;  
          (4) a list of all injuries suffered by arrestees or detainees or persons released, including those observable injuries that were not caused by, or occurred during, the arrest or detainment;
          (5) any lists or reports required by the court tailored to the court's findings or any reasonable requests of the DOJ or designee. The final arbiter of reasonableness for the purposes of this Act will be the court;
          (6) a list of any significant changes to department or unit procedures or protocols;
          (7) a copy of all blood screens conducted pursuant to subsection (a)(8);
          (8) and a videotape (including audio) of every interrogation conducted by officers of the policing jurisdiction or by anyone at the behest of the policing jurisdiction.  
COMMENTARY:  These additional reporting requirements for Federal OPRA jurisdictions are punishment, cure and deterence all rolled into one. As you can see below, the penalties for a failure to report are significant. An angry Federal judge can do a lot with his or her contempt powers.
    (e)  ENFORCEMENT AND PENALTIES.  An officer of an Over-Policed Rights Act jurisdiction who fails to report an action as described in Section 3(c)(1)-(4) commits a felony. An Over-Policed Rights Act jurisdiction that fails to report as provided for in Section 3(c)(5)-(8) is subject to contempt and the contempt powers of the federal court. The Department of Justice or its designee may investigate any instance involving an unholstered weapon, an assault or a battery, and it or its designee shall investigate every instance in which shots were fired, a taser employed or other weapon used at a person.

Section 4
     (a)  PETITION FOR TERMINATION.  After the expiration of one year or any longer term set by the court, the policing jurisdiction may petition the court for relief from the designation as a Federal Over-Policed Rights Act jurisdiction.
     (b)  If by a preponderance of the evidence the court finds that the policing jurisdiction has followed the terms of its order and the strictures of this provision, has implemented any and all reasonable and narrowly-tailored recommendations made by the Department of Justice, and if the court finds that the police unit has been positively changed and is now focused on proper policing techniques, then the court shall lift the Federal OPRA designation. In the alternative, the court may designate a reasonable term of probation if certain requirements have yet to be met.
COMMENTARY:  The light at the end of the tunnel for policing jurisdictions is to have the court relieve them of the Federal OPRA designation. It gives the designation a life span that should be related to how effectively the policing jurisdiction changes and becomes better.

Section 5
     (a)  MISCELLANEOUS.  Appropriations for this act will come from the Department of Justice's General Fund every year without vote. Provided, however, the Department of Justice may use funds obtained pursuant to 28 U.S. Code § 524(c). The Attorney General shall transmit to Congress a report indicating the disposition of any § 524(c) funds used hereunder in the same manner as that Section provides. This Act may be cited as "The Michael Brown Federal Over-Policed Rights Act of 2015."
COMMENTARY:  The DoJ can use their own funds or they can appropriate funds set away pursuant to 28 U.S. Code § 524(c). Those funds include Federal forfeitures of assets. At this time, they sit in a bank account. We put them to work to make better police departments.
     (b)  If any provision of this Act or the application of it to any person or circumstances is held invalid, the remainder of this Act and the application of its provisions to other persons not similarly situated or to other circumstances shall not be affected thereby.
COMMENTARY:  Simply stated, subsection b ensures that, if a court rules that a part of this law is unconstitutional, then the remainder can continue in effect. Thus, if a court holds that the cause of action under Section 2 is unconstitutional, then the reporting requirements in Section 1 would remain in effect, and vice-versa.
This "severance" provision was taken nearly word-for-word from The Voting Rights Act of 1965. We chose this severance provision because it is rooted in The Voting Rights Act and because it has worked. It managed to keep the remaining provisions of the VRA out of Scalia's clutches even after his cronies and he struck down Section 5 of the VRA.