Senate Study Bill 1178 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON STATE GOVERNMENT BILL BY CHAIRPERSON SMITH) A BILL FOR An Act relating to qualified immunity of law enforcement 1 officers, the peace officer, public safety, and emergency 2 personnel bill of rights, and protected information of law 3 enforcement officers and state or federal judicial officers 4 and prosecutors. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1904XC (9) 89 cm/jh

S.F. _____ DIVISION I 1 QUALIFIED IMMUNITY 2 Section 1. NEW SECTION . 669A.1 Findings. 3 The general assembly finds the following: 4 1. Qualified immunity is intended for all but the plainly 5 incompetent or those who knowingly violate the law and is meant 6 to give law enforcement officials leeway to make reasonable 7 mistakes of fact and law. 8 2. The United States supreme court has observed that 9 qualified immunity balances two important interests: the 10 need to hold law enforcement officers accountable when law 11 enforcement officers exercise power irresponsibly and the 12 need to shield law enforcement officers from harassment, 13 distraction, and liability when law enforcement officers 14 perform their duties reasonably. 15 Sec. 2. NEW SECTION . 669A.2 Definitions. 16 For purposes of this chapter, unless the context otherwise 17 requires: 18 1. “Action for damages” means any case brought in a court 19 organized under the laws of this state in which the plaintiff 20 seeks any amount of monetary compensation, including but 21 not limited to claims alleging constitutional or statutory 22 violations. 23 2. “Constitution” means the Constitution of the United 24 States or the Constitution of the State of Iowa. 25 3. “Law enforcement officer” means any federal, state, 26 tribal, or local official who is authorized by law to engage 27 in or supervise the prevention, detection, investigation, or 28 incarceration of any person for any violation of law, and 29 has statutory powers of arrest, apprehension, detention, or 30 incarceration. “Law enforcement officer” includes but is not 31 limited to a peace officer, employee of the department of 32 public safety, employee of the department of corrections, and 33 employee of a judicial district’s department of correctional 34 services. 35 -1- LSB 1904XC (9) 89 cm/jh 1/ 11

S.F. _____ 4. “Other law” means any statutory or common law, whether 1 federal or state. 2 Sec. 3. NEW SECTION . 669A.3 Liability —— law enforcement 3 officers. 4 A law enforcement officer subject to any action for damages 5 in the law enforcement officer’s individual capacity shall not 6 be found liable if such law enforcement officer establishes any 7 of the following: 8 1. The right, privilege, or immunity secured by the 9 constitution or any other law was not clearly established at 10 the time of the alleged deprivation by the law enforcement 11 officer, or at that time, the state of the law was not 12 sufficiently clear that every reasonable law enforcement 13 officer would have understood that the conduct alleged 14 constituted a violation of the constitution or any other law. 15 2. A court of competent jurisdiction had issued a final 16 decision on the merits holding, without reversal, vacatur, or 17 preemption, that the specific conduct alleged to be unlawful 18 was consistent with the constitution or any other law. 19 Sec. 4. NEW SECTION . 669A.4 Liability —— agency or 20 political subdivision. 21 An agency or political subdivision who employed a law 22 enforcement officer subject to an action governed by this 23 chapter shall not be liable for such action if the law 24 enforcement officer is found not liable under section 669A.3 25 and the law enforcement officer was acting within the scope of 26 the law enforcement officer’s employment with the agency or 27 political subdivision. 28 Sec. 5. NEW SECTION . 669A.5 Applicability of law. 29 To the extent any other provision of Iowa law provides less 30 protection to law enforcement officers than this chapter, this 31 chapter supplants that law. 32 DIVISION II 33 PEACE OFFICER, PUBLIC SAFETY, AND EMERGENCY PERSONNEL BILL OF 34 RIGHTS 35 -2- LSB 1904XC (9) 89 cm/jh 2/ 11

S.F. _____ Sec. 6. Section 80F.1, subsection 1, paragraph a, Code 2021, 1 is amended to read as follows: 2 a. “Complaint” means a formal written allegation signed 3 by the complainant or a signed written statement by an 4 officer receiving an oral complaint stating the complainant’s 5 allegation. 6 Sec. 7. Section 80F.1, subsections 3, 5, 8, 9, and 18, Code 7 2021, are amended to read as follows: 8 3. a. A formal administrative investigation of an officer 9 shall be commenced and completed in a reasonable period of time 10 and an officer shall be immediately notified in writing of the 11 preliminary results of the investigation when the investigation 12 is completed and any recommendations for the disposition of the 13 complaint and discipline . 14 b. Upon initiating a formal administrative investigation 15 of an officer, the investigating agency shall promptly serve 16 the officer under investigation with written notice of the 17 complaint, shall inform the officer of the officer’s right to 18 counsel, and shall provide the officer with a copy of the peace 19 officer bill of rights. The notice shall include the names of 20 all of the complainants, the alleged date of the occurrence 21 giving rise to the complaint, a summary of the factual 22 allegations against the officer, and the name and rank or title 23 of the investigator in charge of the formal administrative 24 investigation. 25 5. a. An officer who is the subject of a complaint, shall 26 at a minimum, be provided a written summary of the complaint 27 prior to an interview. If a collective bargaining agreement 28 applies, the complaint or written summary shall be provided 29 pursuant to the procedures established under the collective 30 bargaining agreement. If the complaint alleges domestic abuse, 31 sexual abuse, or sexual harassment, an officer shall not 32 receive more than a written summary of the complaint. 33 b. Upon written request of the officer or the officer’s 34 legal counsel, the employing agency shall provide to the 35 -3- LSB 1904XC (9) 89 cm/jh 3/ 11

S.F. _____ officer or the officer’s legal counsel a complete copy of the 1 officer’s incident reports, other statements, and video or 2 audio recordings from the incident giving rise to the complaint 3 without unnecessary delay prior to an interview of the officer 4 and allowing at least seventy-two hours for review before the 5 interview unless the officer agrees to a shorter period of 6 time. 7 8. a. The officer shall have the right to have the 8 assistance of legal counsel present , at the officer’s expense, 9 during the interview of the officer , hearings, or other 10 disciplinary or administrative proceedings related to the 11 complaint . In addition, the officer shall have the right, at 12 the officer’s expense, to have a union representative present 13 during the interview or, if not a member of a union, the 14 officer shall have the right to have a designee present. 15 b. The officer’s legal counsel, union representative, or 16 employee representative shall not be compelled to disclose in 17 any judicial proceeding, nor be subject to any investigation 18 or punitive action for refusing to disclose, any information 19 received from the officer under investigation or from an agent 20 of the officer. The officer and the officer’s legal counsel 21 may coordinate and communicate in confidence with the officer’s 22 designated union representative or employee representative, 23 and the communications are not subject to discovery in any 24 proceeding. 25 9. If a formal administrative investigation results may 26 result in the removal, discharge, or suspension, or other 27 disciplinary action against an officer, copies of any witness 28 statements and the complete investigative agency’s report 29 shall be timely provided to the officer or the officer’s legal 30 counsel upon the request of the officer at the completion of 31 the investigation . 32 18. A municipality, county, or state agency employing 33 an officer shall not publicly release the officer’s official 34 photograph without the written permission of the officer or 35 -4- LSB 1904XC (9) 89 cm/jh 4/ 11

S.F. _____ without a request to release pursuant to chapter 22 . An 1 officer’s personal information including but not limited to the 2 officer’s home address, personal telephone number, personal 3 electronic mail address, date of birth, social security number, 4 and driver’s license number shall be confidential and shall be 5 redacted from any record prior to the record’s release to the 6 public by the employing agency. Nothing in this subsection 7 prohibits the release of an officer’s photograph or unredacted 8 personal information to the officer’s legal counsel, union 9 representative, or designated employee representative upon the 10 officer’s request. 11 Sec. 8. Section 80F.1, subsection 13, Code 2021, is amended 12 by striking the subsection and inserting in lieu thereof the 13 following: 14 13. An officer who has suffered any injury, personal 15 or otherwise, during the performance of official duties 16 or directly related to the officer’s status as an officer, 17 including due to a person knowingly filing a false complaint 18 against the officer, shall have the right to bring a private 19 cause of action and pursue civil remedies under the law against 20 any person, group of persons, organization, corporation, or the 21 head of an organization or corporation, for damages including 22 but not limited to actual damages, court costs, and reasonable 23 attorney fees. For purposes of this subsection, “knowingly 24 filing a false complaint” means filing a formal complaint 25 against an officer that contains a material fact which the 26 filer knows is untrue when filing the complaint. 27 Sec. 9. Section 80F.1, Code 2021, is amended by adding the 28 following new subsections: 29 NEW SUBSECTION . 20. The employing agency shall keep 30 an officer’s statement, recordings, or transcripts of any 31 interviews or disciplinary proceedings, and any complaints made 32 against an officer confidential unless otherwise provided by 33 law or with the officer’s written consent. This subsection 34 does not prohibit the release of an officer’s statement, 35 -5- LSB 1904XC (9) 89 cm/jh 5/ 11

S.F. _____ recordings, or transcripts of any interviews or disciplinary 1 proceedings, and any complaints made against an officer to 2 the officer or the officer’s legal counsel upon the officer’s 3 request. 4 NEW SUBSECTION . 21. An agency employing full-time or 5 part-time officers shall provide annual training to any officer 6 or supervisor who may perform or supervise an investigation 7 under this section, and shall maintain documentation of any 8 training related to this section. The Iowa law enforcement 9 academy shall adopt minimum training standards not inconsistent 10 with this subsection, including training standards concerning 11 interviewing an officer subject to a complaint. 12 NEW SUBSECTION . 22. Upon request, the employing agency 13 shall provide to the requesting officer or the officer’s legal 14 counsel a copy of the officer’s personnel file and training 15 records regardless of whether the officer is subject to a 16 formal administrative investigation at the time of the request. 17 DIVISION III 18 PROTECTED INFORMATION 19 Sec. 10. Section 331.604, subsection 3, Code 2021, is 20 amended by adding the following new paragraph: 21 NEW PARAGRAPH . f. Upon request by a law enforcement 22 officer, as defined in section 80B.3, or state or federal 23 judicial officer or state or federal prosecutor, the recorder 24 or the recorder’s staff shall redact the requestor’s name 25 contained in electronic documents that are displayed for public 26 access through an internet site. This paragraph does not apply 27 to a requestor holding or seeking public office. The recorder 28 shall implement and maintain a process to facilitate these 29 requests. A fee shall not be charged for the administration 30 of this paragraph. 31 Sec. 11. Section 622.10, subsection 9, paragraphs a and b, 32 Code 2021, are amended to read as follows: 33 a. A peer support group counselor or individual present 34 for a group crisis intervention who obtains information from 35 -6- LSB 1904XC (9) 89 cm/jh 6/ 11

S.F. _____ an officer or a civilian employee of a law enforcement agency 1 or fire department by reason of the counselor’s capacity as a 2 peer support group counselor or an individual’s presence for 3 a group crisis intervention shall not be allowed, in giving 4 testimony, to disclose any confidential communication properly 5 entrusted to the counselor or individual present for a group 6 crisis intervention by the officer or civilian employee while 7 receiving counseling or group crisis intervention . 8 b. The prohibition in this subsection does not apply 9 where the officer or civilian employee has consented to the 10 disclosure of the information specified in paragraph “a” or 11 where the peer support group counselor or individual present 12 for a group crisis intervention was an initial responding 13 officer, a witness, or a party to the incident which prompted 14 the delivery of peer support group counseling services or the 15 group crisis intervention to the officer or civilian employee . 16 EXPLANATION 17 The inclusion of this explanation does not constitute agreement with 18 the explanation’s substance by the members of the general assembly. 19 This bill relates to qualified immunity of law enforcement 20 officers, the peace officer, public safety, and emergency 21 personnel bill of rights, and protected information of law 22 enforcement officers and state or federal judicial officers and 23 prosecutors. The bill is organized into divisions. 24 DIVISION I —— QUALIFIED IMMUNITY. Under the bill, the 25 general assembly finds that qualified immunity is intended 26 for all law enforcement officers except for law enforcement 27 officers who are incompetent or knowingly violate the law and 28 that as the United States supreme court has observed, qualified 29 immunity balances the need to hold law enforcement officers 30 accountable when law enforcement officers exercise their 31 power irresponsibly and the need to shield law enforcement 32 officers from harassment, distraction, and liability when law 33 enforcement officers perform their duties reasonably. 34 The bill defines “law enforcement officer” to mean any 35 -7- LSB 1904XC (9) 89 cm/jh 7/ 11

S.F. _____ federal, state, tribal, or local official who is authorized 1 by law to engage in or supervise the prevention, detection, 2 investigation, or incarceration of any person for any violation 3 of law, and has statutory powers of arrest, apprehension, 4 detention, or incarceration. “Law enforcement officers” 5 include but are not limited to peace officers, employees of 6 the department of public safety, employees of the department 7 of corrections, and employees of a judicial district’s 8 department of correctional services. The bill defines “action 9 for damages” to mean any case brought in a court organized 10 under the laws of this state in which the plaintiff seeks any 11 amount of monetary compensation, including but not limited to 12 claims alleging constitutional or statutory violations. The 13 bill defines “constitution” to mean the Constitution of the 14 United States or the Constitution of the State of Iowa. The 15 bill defines “other law” to mean any statutory or common law, 16 whether federal or state. 17 The bill provides liability protection for a law enforcement 18 officer subject to any action for damages in the law 19 enforcement officer’s individual capacity. A law enforcement 20 officer cannot be held liable if the law enforcement officer 21 establishes that the right, privilege, or immunity secured by 22 the constitution or any other law was not clearly established 23 at the time of the alleged deprivation by the law enforcement 24 officer, or at that time, the state of the law was not 25 sufficiently clear that every reasonable law enforcement 26 officer would have understood the conduct alleged constituted a 27 violation of the constitution or any other law, or that a court 28 of competent jurisdiction had issued a final decision on the 29 merits holding, without reversal, vacatur, or preemption, that 30 the specific conduct alleged to be unlawful was consistent with 31 the constitution or any other law. 32 The bill provides liability protection for an agency or 33 political subdivision who employed a law enforcement officer 34 subject to an action governed under the new Code chapter shall 35 -8- LSB 1904XC (9) 89 cm/jh 8/ 11

S.F. _____ not be liable if the law enforcement officer is found not 1 liable under the provisions of the bill and the law enforcement 2 officer was acting within the scope of employment with the 3 agency or political subdivision. 4 The bill provides that the applicability of the new Code 5 chapter supersedes any other provision of Iowa law that 6 provides less protection to law enforcement officers. 7 DIVISION II —— PEACE OFFICER, PUBLIC SAFETY, AND EMERGENCY 8 PERSONNEL BILL OF RIGHTS. The bill modifies the definition 9 of “complaint” in Code section 80F.1 (peace officer, public 10 safety, and emergency personnel bill of rights) to mean a 11 formal written allegation signed by the complainant or a signed 12 written statement by an officer receiving an oral complaint 13 stating the complainant’s allegation. 14 The bill provides that an officer shall be immediately 15 notified in writing of any preliminary results from a formal 16 administrative investigation and any recommendations for the 17 disposition of the complaint and discipline. Upon initiation 18 of the formal administrative investigation, an officer shall 19 be promptly served with written notice of the complaint, be 20 informed of the officer’s right to counsel, and be provided 21 with a copy of the peace officer bill of rights. The written 22 notice shall include: names of all the complainants, alleged 23 date of the occurrence, summary of the factual allegations, and 24 the name and rank or title of the investigator in charge of the 25 formal administrative investigation. 26 The bill provides that the officer shall have a right 27 to legal counsel at the expense of the officer during the 28 interview, hearings, or other disciplinary or administrative 29 proceedings related to the complaint. The officer’s legal 30 counsel, union representative, or employee representative shall 31 not be compelled to disclose during any judicial proceeding 32 any information received from the officer under investigation 33 or from an agent of the officer. An officer’s legal counsel, 34 union representative, or employee representative shall not be 35 -9- LSB 1904XC (9) 89 cm/jh 9/ 11

S.F. _____ subject to any investigation or punitive action for refusing to 1 disclose any information. The bill provides that the officer 2 and officer’s legal counsel may coordinate and communicate in 3 confidence with the officer’s designated union representative 4 or employee representative and those communications shall not 5 be subject to discovery. 6 The bill provides that if a formal administrative 7 investigation may result in removal, discharge, suspension, or 8 other disciplinary action against the officer, the complete 9 investigative reports shall be timely provided to the officer 10 or officer’s legal counsel upon request at the completion of 11 the formal administrative investigation. 12 The bill provides that an officer’s personal information 13 shall be redacted from any record prior to the record’s release 14 to the public. An officer’s photograph or unredacted personal 15 information may be released to the officer’s legal counsel, 16 union representative, or designated employee representative 17 upon the officer’s request. 18 The bill provides that an officer may bring a private cause 19 of action, including but not limited to an action for money 20 damages, against a private citizen for filing a false complaint 21 against the officer. 22 The bill provides that an officer’s personal information, 23 including certain personal information specified in the bill, 24 shall be confidential and shall be redacted from any record 25 prior to the record’s release to the public by an employing 26 agency. The bill provides that the following information shall 27 also be kept confidential: an officer’s statement, recordings, 28 or transcripts of any interviews or disciplinary proceedings, 29 and any complaints made against an officer. 30 The bill provides that an agency shall provide annual 31 training to any person who may perform or supervise an 32 investigation under the bill. The Iowa law enforcement academy 33 shall adopt minimum training standards not inconsistent with 34 the bill including training standards concerning interviewing 35 -10- LSB 1904XC (9) 89 cm/jh 10/ 11

S.F. _____ an officer subject to a complaint. 1 The bill provides that upon request, the employing agency 2 shall provide to a requesting officer or the officer’s legal 3 counsel a copy of the officer’s personnel file and training 4 records regardless of whether the officer is subject to a 5 formal administrative investigation at the time of the request. 6 DIVISION III —— PROTECTED INFORMATION. The bill provides 7 that upon request by a law enforcement officer, state or 8 federal judicial officer or prosecutor, the recorder or the 9 recorder’s staff shall redact the requester’s name contained in 10 electronic documents displayed for public access, unless the 11 person is holding or seeking public office. A fee shall not be 12 charged to redact the requester’s name. 13 The bill provides that a peer support group counselor 14 or individual present for a group crisis intervention who 15 obtains information from a law enforcement officer, fire 16 fighter, or civilian employee of a law enforcement agency or 17 fire department shall not be allowed, in giving testimony, to 18 disclose any confidential communication properly entrusted to 19 the counselor or individual by the law enforcement officer, 20 fire fighter, or civilian employee while receiving counseling. 21 However, the law enforcement officer, fire fighter, or civilian 22 employee may consent to the disclosure. Under current law, 23 this evidentiary rule applies to communications between peer 24 support group counselors and law enforcement officers or fire 25 fighters. 26 -11- LSB 1904XC (9) 89 cm/jh 11/ 11