H. R. 2893
IN THE HOUSE OF REPRESENTATIVES
April 28, 2021
Ms. Omar (for herself and Ms. Norton) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To establish the National Police Misuse of Force Investigation Board, and for other purposes.
This Act may be cited as the
National Police Misuse of Force Investigation Board Act of 2021.
The National Police Misuse of Force Investigation Board (hereinafter in this Act referred to as the
Board) is an independent establishment of the United States Government.
Appointment of members
The Board is composed of 8 members appointed by the President, by and with the advice and consent of the Senate. Not more than 4 members may be appointed from the same political party. At least 4 members shall be appointed on the basis of technical qualification, professional standing, and demonstrated knowledge in civil rights law, psychology, racial inequality social theory, socioeconomics, or violent conflict mitigation.
Terms of office and removal
The term of office of each member is 6 years. An individual appointed to fill a vacancy occurring before the expiration of the term for which the predecessor of that individual was appointed, is appointed for the remainder of that term. When the term of office of a member ends, the member may continue to serve until a successor is appointed and qualified. The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.
Chairman and vice chairman
The President shall designate, by and with the advice and consent of the Senate, a Chairman of the Board. The President also shall designate a Vice Chairman of the Board. The terms of office of both the Chairman and Vice Chairman are 2 years. When the Chairman is absent or unable to serve or when the position of Chairman is vacant, the Vice Chairman acts as Chairman.
Duties and powers of chairman
The Chairman is the chief executive and administrative officer of the Board. Subject to the general policies and decisions of the Board, the Chairman shall—
appoint and supervise officers and employees, other than regular and full-time employees in the immediate offices of another member, necessary to carry out this Act;
fix the pay of officers and employees necessary to carry out this Act;
distribute business among the officers, employees, and administrative units of the Board; and
supervise the expenditures of the Board.
Five members of the Board are a quorum in carrying out duties and powers of the Board.
Offices, bureaus, and divisions
The Board shall establish offices necessary to carry out this Act, including an office to investigate and report on police brutality. The Board shall establish distinct and appropriately staffed bureaus, divisions, or offices to investigate and report on incidents involving each of the following:
Deaths occurring in police custody.
Uses of force that result in severe bodily injury in police custody.
Chief financial officer
The Chairman shall designate an officer or employee of the Board as the Chief Financial Officer. The Chief Financial Officer shall—
report directly to the Chairman on financial management and budget execution;
direct, manage, and provide policy guidance and oversight on financial management and property and inventory control; and
review the fees, rents, and other charges imposed by the Board for services and things of value it provides, and suggest appropriate revisions to those charges to reflect costs incurred by the Board in providing those services and things of value.
Board member staff
Each member of the Board shall select and supervise regular and full-time employees in his or her immediate office as long as any such employee has been approved for employment by the designated agency ethics official under the same guidelines that apply to all employees of the Board. Except for the Chairman, the appointment authority provided by this subsection is limited to the number of full-time equivalent positions, in addition to 1 senior professional staff at a level not to exceed the GS 15 level and 1 administrative staff, allocated to each member through the Board’s annual budget and allocation process.
The Board shall have a seal that shall be judicially recognized.
Content of reports
A report under subsection (g) shall include the following information:
The demographic data of the individual killed or injured by police.
The demographics of the officers involved.
The circumstances (such as date, time, location).
The reason for the stop or the initial contact with the subject, the events leading up to the shooting or use of force (such as search or pursuit).
The outcome (such as the types of force used, charges filed, death injury).
Special boards of inquiry on police brutality
If an incident involves a substantial question history of excessive force use, the influence of historical racial injustice, or civil rights infringement within the community, the Board may establish a special board of inquiry composed of—
one member of the Board acting as chairman; and
2 members representing the public, appointed by the President on notification of the establishment of the special board of inquiry.
Qualifications and conflicts of interest
The public members of a special board of inquiry must be qualified by training and experience to participate in the inquiry and may not have a pecuniary interest in an aviation enterprise involved in the incident to be investigated.
A special board of inquiry has the same authority that the Board has under this Act.
The Board, and when authorized by it, a member of the Board, an administrative law judge employed by or assigned to the Board, or an officer or employee designated by the Chairman of the Board, may conduct hearings to carry out this Act, administer oaths, and require, by subpoena or otherwise, necessary witnesses and evidence.
A witness or evidence in a hearing under paragraph (1) of this subsection may be summoned or required to be produced from any place in the United States to the designated place of the hearing. A witness summoned under this subsection is entitled to the same fee and mileage the witness would have been paid in a court of the United States.
A subpoena shall be issued under the signature of the Chairman or the Chairman’s delegate but may be served by any person designated by the Chairman.
If a person disobeys a subpoena, order, or inspection notice of the Board, the Board may bring a civil action in a district court of the United States to enforce the subpoena, order, or notice. An action under this paragraph may be brought in the judicial district in which the person against whom the action is brought resides, is found, or does business. The court may punish a failure to obey an order of the court to comply with the subpoena, order, or notice as a contempt of court.
The Board may—
procure the temporary or intermittent services of experts or consultants under section 3109 of title 5, United States Code;
make agreements and other transactions necessary to carry out this Act without regard to section 3709 of the Revised Statutes (41 U.S.C. 5);
use, when appropriate, available services, equipment, personnel, and facilities of a department, agency, or instrumentality of the United States Government on a reimbursable or other basis;
confer with employees and use services, records, and facilities of State and local governmental authorities;
appoint advisory committees composed of qualified private citizens and officials of the Government and State and local governments as appropriate;
accept voluntary and uncompensated services notwithstanding another law;
accept gifts of money and other property;
make contracts with nonprofit entities to carry out studies related to duties and powers of the Board; and
negotiate and enter into agreements with individuals and private entities and departments, agencies, and instrumentalities of the Government, State and local governments, and governments of foreign countries for the provision of facilities, incident-related and technical services or training in police misuse of force investigation theory and techniques, and require that such entities provide appropriate consideration for the reasonable costs of any facilities, goods, services, or training provided by the Board.
The Board shall deposit in the Treasury amounts received under paragraph (1)(I) of this subsection to be credited as offsetting collections to the appropriation of the Board. The Board shall maintain an annual record of collections received under paragraph (1)(I) of this subsection.
Submission of certain copies to congress
When the Board submits to the President or the Director of the Office of Management and Budget a budget estimate, budget request, supplemental budget estimate, other budget information, a legislative recommendation, prepared testimony for congressional hearings, or comments on legislation, the Board must submit a copy to Congress at the same time. An officer, department, agency, or instrumentality of the Government may not require the Board to submit the estimate, request, information, recommendation, testimony, or comments to another officer, department, agency, or instrumentality of the Government for approval, comment, or review before being submitted to Congress. The Board shall develop and approve a process for the Board’s review and comment or approval of documents submitted to the President, Director of the Office of Management and Budget, or Congress under this subsection.
The Chairman may determine the number of committees that are appropriate to maintain effective liaison with other departments, agencies, and instrumentalities of the Government, State and local governmental authorities, and independent standard-setting authorities that carry out programs and activities related to misuse of force by law enforcement officers. The Board may designate representatives to serve on or assist those committees.
The Board, or an officer or employee of the Board designated by the Chairman, may conduct an inquiry to obtain information related to police misuse of force after publishing notice of the inquiry in the Federal Register. The Board or designated officer or employee may require by order a department, agency, or instrumentality of the Government, a State or local governmental authority, or a person transporting individuals or property in commerce to submit to the Board a written report and answers to requests and questions related to a duty or power of the Board. The Board may prescribe the time within which the report and answers must be given to the Board or to the designated officer or employee. Copies of the report and answers shall be made available for public inspection.
The Board may prescribe regulations to carry out this Act.
Subject to the requirements of this section and notwithstanding paragraphs (1) and (2) of section 5542(a) of title 5, for an employee of the Board whose basic pay is at a rate which equals or exceeds the minimum rate of basic pay for GS–10 of the General Schedule, the Board may establish an overtime hourly rate of pay for the employee with respect to work performed at the scene of an incident (including travel to or from the scene) and other work that is critical to an incident investigation in an amount equal to one and one-half times the hourly rate of basic pay of the employee. All of such amount shall be considered to be premium pay.
Limitation on overtime pay to an employee
An employee of the Board may not receive overtime pay under paragraph (1), for work performed in a calendar year, in an amount that exceeds 15 percent of the annual rate of basic pay of the employee for such calendar year.
Limitation on total amount of overtime pay
The Board may not make overtime payments under paragraph (1) for work performed in any fiscal year in a total amount that exceeds 1.5 percent of the amount appropriated to carry out this Act for that fiscal year.
Basic pay defined
In this subsection, the term basic pay includes any applicable locality-based comparability payment under section 5304 of title 5 (or similar provision of law) and any special rate of pay under section 5305 of title 5 (or similar provision of law).
Not later than Sept 30, 2022, the Board shall submit to the House Committees on the Judiciary and Oversight & Reform and Senate Committees on the Judiciary and Homeland Security & Government Affairs a report identifying the total amount of overtime payments made under this subsection in the preceding fiscal year, and the number of employees whose overtime pay under this subsection was limited in that fiscal year as a result of the 15 percent limit established by paragraph (2).
The Board shall maintain at least 1 full-time employee in each State located more than 1,000 miles from the nearest Board regional office to provide initial investigative response to incidents the Board is empowered to investigate under this Act that occur in that State.
Disclosure, availability, and use of information
Except as provided in subsections (b), (c), (d), and (f) of this section, a copy of a record, information, or investigation submitted or received by the Board, or a member or employee of the Board, shall be made available to the public on identifiable request and at reasonable cost. This subsection does not require the release of information described by section 552(b) of title 5 or protected from disclosure by another law of the United States.
Deposit of receipts
The Board shall deposit in the Treasury amounts received under paragraph (1) to be credited to the appropriation of the Board as offsetting collections.
Protection of voluntary submission of information
Notwithstanding any other provision of law, neither the Board, nor any agency receiving information from the Board, shall disclose voluntarily provided safety-related information if that information is not related to the exercise of the Board’s investigation authority under this Act and if the Board finds that the disclosure of the information would inhibit the voluntary provision of that type of information.
Training of board employees and others
The Board may conduct training of its employees in those subjects necessary for the proper performance of investigations. The Board may also authorize attendance at courses given under this subsection by other government personnel, personnel of foreign governments, and personnel from industry or otherwise who have a requirement for investigation training. The Board may require non-Board personnel to reimburse some or all of the training costs, and amounts so reimbursed shall be credited to the appropriation of the Board as offsetting collections.
Reports and studies
The Board shall report periodically to Congress, departments, agencies, and instrumentalities of the United States Government and State and local governmental authorities concerned with the misuse of force by public safety departments, and other interested persons. The report shall—
advocate meaningful responses to reduce the likelihood of incidents similar to those investigated by the Board; and
propose recommendations for adjudication to the local, state and Federal government, as well as the public.
Studies, investigations, and other reports
The Board also shall—
carry out special studies and investigations regarding law enforcement oversight;
examine techniques and methods of police misuse of force investigation and periodically publish recommended procedures for investigations;
prescribe requirements for persons reporting incidents that—
may be investigated by the Board under this Act; or
involve public safety departments;
evaluate, examine the effectiveness of, and publish the findings of the Board about the transportation safety consciousness of other departments, agencies, and instrumentalities of the Government and their effectiveness in preventing such incidents; and
evaluate the adequacy of safeguards and procedures for the transportation of hazardous material and the performance of other departments, agencies, and instrumentalities of the Government responsible for the safe transportation of that material.
The Board shall submit a report to Congress on July 1 of each year. The report shall include—
a statistical and analytical summary of all investigations conducted and reviewed by the Board during the prior calendar year;
a survey and summary of the recommendations made by the Board to reduce together with the observed response to each recommendation;
a detailed appraisal of the investigation and excessive force incident prevention activities of other departments, agencies, and instrumentalities of the United States Government and State and local governmental authorities having responsibility for those activities under a law of the United States or a State; and
a list of ongoing investigations that have exceeded the expected time allotted for completion by Board order and an explanation for the additional time required to complete each such investigation.
Authorization of appropriations
There are authorized to be appropriated for the purposes of this Act such sums as may be necessary.
Fees, refunds, and reimbursements
The Board may impose and collect such fees, refunds, and reimbursements as it determines to be appropriate for services provided by or through the Board.
Receipts credited as offsetting collections
Notwithstanding section 3302 of title 31, any fee, refund, or reimbursement collected under this subsection—
shall be credited as offsetting collections to the account that finances the activities and services for which the fee is imposed or with which the refund or reimbursement is associated;
shall be available for expenditure only to pay the costs of activities and services for which the fee is imposed or with which the refund or reimbursement is associated; and
shall remain available until expended.
The Board may refund any fee paid by mistake or any amount paid in excess of that required.
The Board shall investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of—
deaths in police custody
officer-involved shootings; or
uses of force that result in severe bodily injury in police custody.
Inspections and autopsies
Entry and inspection
An officer or employee of the Board—
on display of appropriate credentials and written notice of inspection authority, may enter property where a incident has occurred or evidence from the incident is located and do anything necessary to conduct an investigation; and
during reasonable hours, may inspect any record, process, control, or facility related to an incident investigation under this Act.
Inspection, testing, preservation, and moving of involved weapons
In investigating an incident under this Act, the Board may inspect and test, to the extent necessary, any weapon involved.
Any weapon involved in an incident shall be preserved, and may be moved, only as provided by regulations of the Board.
Exclusive authority of board
Only the Board has the authority to decide on the way in which testing under this section will be conducted, including decisions on the person that will conduct the test, the type of test that will be conducted, and any individual who will witness the test. Those decisions are committed to the discretion of the Board. The Board shall make any of those decisions based on the needs of the investigation being conducted and, when applicable, subsections (a), (c), and (e) of this section.
Promptness of tests and availability of results
An inspection, examination, or test under subsection (a) or (c) of this section shall be started and completed promptly, and the results shall be made available.
The Board may order an autopsy to be performed and have other tests made when necessary to investigate an incident under this Act. However, local law protecting religious beliefs related to autopsies shall be observed to the extent consistent with the needs of the incident investigation.
With or without reimbursement, the Board may obtain a copy of an autopsy report performed by a State or local official on an individual who died because of an incident investigated by the Board under this Act.
Responses to safety recommendations
When the Board submits a recommendation related to law enforcement use of force, the recipient shall give a formal written response to each recommendation not later than 90 days after receiving the recommendation. The response shall indicate whether the recipient intends—
to carry out procedures to adopt the complete recommendation;
to carry out procedures to adopt a part of the recommendation; or
to refuse to carry out procedures to adopt the recommendation.
Timetable for completing procedures and reasons for refusals
A response under subsection (a)(1) or (2) of this section shall include a copy of a proposed timetable for completing the procedures. A response under subsection (a)(2) of this section shall detail the reasons for the refusal to carry out procedures on the remainder of the recommendation. A response under subsection (a)(3) of this section shall detail the reasons for the refusal to carry out procedures.
The Board shall make a copy of each recommendation and response available to the public.
Annual secretarial regulatory status reports
On February 1 of each year, the Attorney General shall submit a report to Congress and the Board containing the regulatory status of each recommendation made by the Board that is on the Board’s
most wanted list. The Attorney General shall continue to report on the status of each such recommendation in the report due on February 1 of subsequent years.
Failure to report
If on March 1 of each year the Board has not received the Attorney General’s report required by this subsection, the Board shall notify the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate of the Attorney General’s failure to submit the required report.
Compliance report with recommendations
Within 90 days after the date on which the Attorney General submits a report under this subsection, the Board shall review the Attorney General’s report and transmit comments on the report to the Attorney General, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives.
Assistance to civilians and families of civilians of incidents under investigation by the board
As soon as practicable after being notified of an incident within the United States involving the loss of life or serious injury to a civilian resulting from an interaction with law enforcement officers the Chairman of the Board shall—
designate and publicize the name and phone number of a director of family support services who shall be an employee of the Board and shall be responsible for acting as a point of contact within the Federal Government for civilians and the families of civilians involved in the incident; and
designate an independent nonprofit organization, with experience in post trauma communication with civilians and families, which shall have primary responsibility for coordinating the emotional care and support of civilians or the families of civilians involved in the incident.
Responsibilities of designated organization
The organization designated for an incident under subsection (a)(2) shall have the following responsibilities with respect to the civilians and families of civilians involved in the incident:
To provide mental health and counseling services.
To take such actions as may be necessary to provide an environment in which the civilians and families may grieve in private.
To meet with the families who have traveled to the location of the incident, to contact the families unable to travel to such location, and to contact all affected civilians and families periodically thereafter until such time as the organization, in consultation with the director of family support services designated for the incident under subsection (a)(1), determines that further assistance is no longer needed.
To communicate with the civilians families as to the roles of the organization, government agencies, and parties involved with respect to the incident and the post-incident activities.
Continuing responsibilities of the board
In the course of its investigation described in subsection (a), the Board shall, to the maximum extent practicable, ensure that the families of individuals involved—
are briefed, prior to any public briefing, about the incident and any other findings from the investigation; and
are individually informed of and allowed to attend any public hearings and meetings of the Board about the incident.
Actions to impede the board
No person (including a State or political subdivision) may impede the ability of the Board (including the director of family support services designated for an incident under subsection (a)(1)), or an organization designated for an incident under subsection (a)(2), to carry out its responsibilities under this section or the ability of the families of those involved in the accident to have contact with one another.
Prohibition on actions to prevent mental health and counseling services
No State or political subdivision thereof may prevent the employees, agents, or volunteers of an organization designated for an incident under subsection (a)(2) from providing mental health and counseling services under subsection (c)(1) in the 30-day period beginning on the date of the incident. The director of family support services designated for the incident under subsection (a)(1) may extend such period for not to exceed an additional 30 days if the director determines that the extension is necessary to meet the needs of the families and if State and local authorities are notified of the determination.
Nothing in this section may be construed as limiting the actions that a law enforcement department or local unit of government may take, or the obligations that an such department or unit of local government may have, in providing assistance to the civilian who is injured or a family member of civilian who is killed resulting from an interaction with law enforcement officers.
Relinquishment of investigative priority
This section (other than subsection (g)) shall not apply to an incident involving use of force by a law enforcement officer if the Board has relinquished investigative priority and the Federal agency to which the Board relinquished investigative priority is willing and able to provide assistance to the victims and families involved in the incident.
If this section does not apply to an incident involving use of force by a law enforcement officer because the Board has relinquished investigative priority with respect to the accident, the Board shall assist, to the maximum extent possible, the agency to which the Board has relinquished investigative priority in assisting families with respect to the accident.
Authority of the inspector general
The Inspector General of the Department of Justice, in accordance with the mission of the Inspector General to prevent and detect fraud and abuse, shall have authority to review only the financial management, property management, and business operations of the Board, including internal accounting and administrative control systems, to determine compliance with applicable Federal laws, rules, and regulations.
In carrying out this section, the Inspector General shall—
keep the Chairman of the Board and Congress fully and currently informed about problems relating to administration of the internal accounting and administrative control systems of the Board;
issue findings and recommendations for actions to address such problems; and
report periodically to Congress on any progress made in implementing actions to address such problems.
Access to information
In carrying out this section, the Inspector General may exercise authorities granted to the Inspector General under subsections (a) and (b) of section 6 of the Inspector General Act of 1978 (5 U.S.C. App.).
Authorizations of appropriations
There are authorized to be appropriated to the Attorney General for use by the Inspector General of the Department of Justice such sums as may be necessary to cover expenses associated with activities pursuant to the authority exercised under this section.
In the absence of an appropriation under this subsection for an expense referred to in paragraph (1), the Inspector General and the Board shall have a reimbursable agreement to cover such expense.
Evaluation and audit of Board
To promote economy, efficiency, and effectiveness in the administration of the programs, operations, and activities of the Board, the Comptroller General of the United States shall evaluate and audit the programs and expenditures of the Board. Such evaluation and audit shall be conducted at least annually, but may be conducted as determined necessary by the Comptroller General or the appropriate congressional committees.
Responsibility of comptroller general
The Comptroller General shall evaluate and audit Board programs, operations, and activities, including—
information management and security, including privacy protection of personally identifiable information;
procurement and contracting planning, practices and policies;
the extent to which the Board follows leading practices in selected management areas; and
the extent to which the Board addresses management challenges in completing incident investigations.
Appropriate congressional committees
For purposes of this section the term appropriate congressional committees means the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.
Discovery and use of recordings and transcripts
Transcripts and recordings
Except as provided by this subsection, a party in a judicial proceeding may not use discovery to obtain any part of a recording from a body camera used by a law enforcement officer or a vehicle-mounted camera.
Except as otherwise provided in this subsection, a court may allow discovery by a party of a recording if the court determines that discovery of the recording is necessary to provide the party with sufficient information for the party to receive a fair trial.
A court may allow discovery, or require production for an in camera review, of a transcript of a recording only if the recording is not available.
When a court allows discovery in a judicial proceeding of a part of a transcript or recording not otherwise made available to the public the court shall issue a protective order—
to limit the use of the part of the transcript or the recording to the judicial proceeding; and
to prohibit dissemination of the part of the transcript or the recording to any person that does not need access to the part of the transcript or the recording for the proceeding.
A court may allow a part of a transcript or recording to be admitted into evidence in a judicial proceeding, only if the court places the part of the transcript or the recording under seal to prevent the use of the part of the transcript or the recording for purposes other than for the proceeding.
This subsection does not prevent the Board from referring at any time to a recording in making safety recommendations.
In this subsection:
The term recorder means a voice or video recorder.
The term transcript includes any written depiction of visual information obtained from a video recorder.
No part of a report of the Board, related to an incident or an investigation of an incident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.
At any time, the Department of Justice Civil Rights Divisions can open a Pattern-or-Practice Investigation, citing the lack of progress on the impelmentation of recommendations by a recipient as possible evidence of a systematic pattern of abuse, and take direct enforcement action if needed.
For each fiscal year after the expiration of the period specified in subsection (d) in which a State or unit of local government receives a grant under part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), the State or unit of local government shall conform their laws as follows:
Any findings or recommendations issued by the Board will be admissible in criminal or civil court procedures regarding an incident of violence by a law enforcement officer.
If prosecution or a civil case moves forward against the police officer or officers in question, the findings of the Board may be presented to the jury.
Additionally, any police department, locality or state government that has received reform recommendations from the Board shall submit a report to the Board and to Congress one calendar year later detailing the actions it has taken on the matter, and will continue to report yearly so long as any recommendations remain open.
Compliance and ineligibility
Beginning on the first full fiscal year after the date of enactment of this Act, each State or unit of local government referred to in subsection (a) receiving a grant shall comply with subsection (a), except that the Attorney General may grant an additional 60 days to a State or unit of local government that is making good faith efforts to comply with such subsection.
Ineligibility for funds
For any fiscal year after the expiration of the period specified in paragraph (1), a State or unit of local government that fails to comply with subsection (a), shall, at the discretion of the Attorney General, be subject to a reduction of the funds that would otherwise be allocated for that fiscal year to the State under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), whether characterized as the Edward Byrne Memorial State and Local Law Enforcement Assistance Programs, the Local Government Law Enforcement Block Grants Program, the Edward Byrne Memorial Justice Assistance Grant Program, or otherwise of not less than 1 percent and not more than 10 percent.
Amounts not allocated under a program referred to in subsection (b)(2) to a State for failure to fully comply with subsection (a) shall be reallocated under that program to States that have not failed to comply with such subsection.