Police in Maine will face additional restrictions, oversight and accountability, according to new laws that mostly come into effect next month (October).
Officers who move departments will no longer be shielded from disclosure of past misconduct, if a new department taking on an officer wants to see documents related to it. The new law still places an obligation on the new department to get a release signed by the new officer they are taking on, and some recruiting departments may not ask for one to be signed. Only if a release is requested must the applicant sign it to be considered and an agency that gets one (where the applicant currently or has previously worked) has a legal obligation to release any records requested.
The legislation covers not just police departments, state police, and sheriff’s office deputies, but corrections officers in county and state jails. The release also includes the results of internal affairs reports, and polygraphs, which are not admissible as evidence in court, conducted when a police officer or corrections officer has been questioned about alleged criminal conduct.
However, this blog is aware that some employment records for reprimands and suspensions of those who work in law enforcement are being routinely destroyed because of an interpretation of collective bargaining agreements. If records of egregious conduct are not kept in a personnel file, self evidently they will not be passed on to any new department - defeating the legislation’s purpose. Disciplinary records often contain references to Internal Affairs investigations, with reference numbers. If an employing department is unaware such a record exists, because the discipline is destroyed, they may not know to even ask for it.
This destruction of suspension and reprimand records - aside from not being explicitly stated in union contracts - also ignores the damaging information that defendants are entitled to have as part of constitutional law in discovery in criminal cases and potentially not passed on because these are destroyed.
There will also be new responses to the way police deal with homelessness and that officers will be required to follow. Starting in January next year, the state’s Attorney General is required to distribute a protocol on dealing with homeless people that must be adopted by all police departments. Officers dealing with certain offenses, like criminal trespass, are required to ask if a person is homeless and then respond according to the protocol. The devil is in the detail of what that will mean in practice. This became law without the signature of Governor Janet Mills.
The Maine Criminal Justice Academy (MCJA) is also being given new authority to broaden the behavior that it can regard as worthy of what’s known as decertification - withdrawal of a police officer’s ability to work in law enforcement. Certification can vaguely be compared to a professional license for police. The MCJA is now able to draw up rules about behavior, other than criminal convictions, that would lead to decertification or suspension.
MCJA is what is regarded generally as a POST board - which stands for Peace Officers Standards and Training. These are boards that regulate policing. Across the United States about half only decertify because of major convictions and are regarded as pretty toothless for that reason, so this is a major improvement on what many reformers regard as weak oversight of police in many states. Decisions by MCJA are also now undeniably public records, according to the new law.
Aside from any new conduct that may be regulated, the MCJA board will also have an additional member that is only for a citizen who has never been involved in law enforcement. Decisions made must now have at least one such person involved as well.
Beginning in two years (July 2023) police departments will be required to collect data on traffic stops – including race, gender, and age - based on officer observations not required to be given by the person stopped. The collected information will also include the violation that occurred for the stop, whether there was a search, and additional information deemed appropriate. This information will be anonymized about the person stopped. Each agency then has to issue a report to the attorney general. The information will then be released annually every January thereafter. The legislation does not specify whether the information will be broken down by agency (individual police departments etc), though the names of individual officers may be regarded as confidential (though the law says officers’ names ”may not” be released rather than “shall not,” which legislation normally indicates is a command, and indicates the potential for discretion in the statute). Any release restriction does not preclude information being given for discovery purposes in criminal cases for defendants.The Attorney General is required to draw up rules by January 2023 on how police departments will be expected to do this data collection.
This legislation followed several unsuccessful attempts at proposed legislation to prevent so-called pretext stops and is designed to prevent racial profiling. Pretext stops - where there is an undisclosed and underlying reason for a stop - are allowed by the United States Supreme Court, and under state constitutional law in Maine. An officer must have a reason to stop (such as a tail light being out) but it could be for a more substantial investigation.
There were also several bills that did not pass that were designed to ban so-called “no knock warrants.” These are arrest or search warrants, generally issued for homes, where the police are not required to knock, say they are police, and allow a reasonable time for a person to answer before breaking down a door.
Instead, there are new restrictions, such as they are, that fall far short of a ban. Arguably these restrictions, if they can be characterized as them, have no actual effect since the new legislation simply puts into statute what is already precedent by the United States Supreme Court. The new law also gives no remedy for a violation, such as suppression of evidence, in any event. This is also the case in precedents set by the Supreme Court, including loopholes. However, police departments must also have policies for these kinds of searches and seizures - which is only useful for the cross examination of an officer in why it was not followed or the discipline of an officer for the same reason.
Another law that passed in the last legislative session will force departments to have a policy on recording witnesses during investigations for homicides and Class A, B, and C crimes (the most serious that are regarded in other states as felonies). That leaves a gap for witnesses to misdemeanors - and a lack of protection for defendants accused of them. Policies already have to be in place for recording suspects in these types of offenses.
Lastly there are changes in way use of deadly force by police is investigated. An investigation and its findings regarding the use of deadly force must be sent to the Attorney General's Deadly Force Review Panel within 180 days of receiving notice of it happening, or the AG must tell the panel that it will take longer before that time is up. The period cannot exceed 270 days.
The law allows the release of body camera or police cruiser video on use of deadly force at the discretion of the Attorney General. After a request for release, the AG has 30 days to make a denial and state why it is being denied, or issue a time frame for release of all or part of the video.
For a broader context on police misconduct, read attorney Marcus Wraight’s law review article on police accountability here.