2021 -- S 0773

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LC002592

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

OFFICERS' BILL OF RIGHTS

     

     Introduced By: Senators Mack, Bell, and Acosta

     Date Introduced: April 01, 2021

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 42-28.6 of the General Laws entitled "Law Enforcement Officers'

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Bill of Rights" is hereby repealed in its entirety.

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CHAPTER 42-28.6

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Law Enforcement Officers' Bill of Rights

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     42-28.6-1. Definitions -- Payment of legal fees.

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     As used in this chapter, the following words have the meanings indicated:

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     (1) "Law enforcement officer" means any permanently employed city or town police

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officer, state police officer, permanent law enforcement officer of the department of environmental

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management, or those employees of the airport corporation of Rhode Island who have been granted

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the authority to arrest by the director of said corporation. However this shall not include the chief

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of police and/or the highest ranking sworn officer of any of the departments including the director

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and deputy director of the airport corporation of Rhode Island.

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     (2)(i) "Hearing committee" means a committee which is authorized to hold a hearing on a

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complaint against a law enforcement officer and which consists of three (3) active or retired law

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enforcement officers from within the state of Rhode Island, other than chiefs of police, who have

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had no part in the investigation or interrogation of the law enforcement officer. The committee shall

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be composed of three (3) members; one member selected by the chief or the highest ranking officer

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of the law enforcement agency, one member selected by the aggrieved law enforcement officer and

 

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the third member shall be selected by the other two (2) members. In the event that the other two (2)

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members are unable to agree within five (5) days, then either member will make application to the

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presiding justice of the superior court and the presiding justice shall appoint the third member who

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shall be an active law enforcement officer. Upon written application by a majority of the hearing

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committee, the presiding justice, in his or her discretion, may also appoint legal counsel to assist

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the hearing committee.

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     (ii) The law enforcement agency and the law enforcement officer under investigation shall

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each be responsible to pay fifty percent (50%) of the legal fee of the appointed legal counsel for

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the hearing committee; provided, however, that on motion made by either party, the presiding

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justice shall have the authority to make a different disposition as to what each party is required to

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pay toward the appointed legal counsel's legal fee.

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     (3) "Hearing" means any meeting in the course of an investigatory proceeding, other than

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an interrogation at which no testimony is taken under oath, conducted by a hearing committee for

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the purpose of taking or adducing testimony or receiving evidence.

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     42-28.6-2. Conduct of investigation.

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     Whenever a law enforcement officer is under investigation or subjected to interrogation by

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a law enforcement agency, for a non-criminal matter which could lead to disciplinary action,

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demotion, or dismissal, the investigation or interrogation shall be conducted under the following

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conditions:

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     (1) The interrogation shall be conducted at a reasonable hour, preferably at a time when

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the law enforcement officer is on duty.

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     (2) The interrogation shall take place at an office within the department previously

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designated for that purpose by the chief of police.

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     (3) The law enforcement officer under interrogation shall be informed of the name, rank,

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and command of the officer in charge of the investigation, the interrogating officer, and all persons

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present during the interrogation. All questions directed to the officer under interrogation shall be

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asked by and through one interrogator.

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     (4) No complaint against a law enforcement officer shall be brought before a hearing

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committee unless the complaint be duly sworn to before an official authorized to administer oaths.

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     (5) The law enforcement officer under investigation shall, prior to any interrogating, be

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informed in writing of the nature of the complaint and of the names of all complainants.

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     (6) Interrogating sessions shall be for reasonable periods and shall be timed to allow for

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such personal necessities and rest periods as are reasonably necessary.

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     (7) Any law enforcement officer under interrogation shall not be threatened with transfer,

 

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dismissal, or disciplinary action.

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     (8) If any law enforcement officer under interrogation is under arrest, or is likely to be

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placed under arrest as a result of the interrogation, he or she shall be completely informed of all his

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or her rights prior to the commencement of the interrogation.

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     (9) At the request of any law enforcement officer under interrogation, he or she shall have

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the right to be represented by counsel of his or her choice who shall be present at all times during

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the interrogation. The interrogation shall be suspended for a reasonable time until representation

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can be obtained.

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     (10) No statute shall abridge nor shall any law enforcement agency adopt any regulation

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which prohibits the right of a law enforcement officer to bring suit arising out of his or her duties

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as a law enforcement officer.

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     (11) No law enforcement agency shall insert any adverse material into any file of the officer

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unless the officer has an opportunity to review and receive a copy of the material in writing, unless

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the officer waives these rights in writing.

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     (12) No public statement shall be made prior to a decision being rendered by the hearing

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committee and no public statement shall be made if the officer is found innocent unless the officer

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requests a public statement; provided, however, that this subdivision shall not apply if the officer

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makes a public statement. The foregoing shall not preclude a law enforcement agency, in a criminal

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matter, from releasing information pertaining to criminal charges which have been filed against a

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law enforcement officer, the officer's status of employment and the identity of any administrative

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charges brought against said officer as a result of said criminal charges.

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     (13) No law enforcement officer shall be compelled to speak or testify before, or be

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questioned by, any non-governmental agency.

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     42-28.6-3. Disclosure of personal information.

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     No law enforcement officer shall be required or requested to disclose any item of his or her

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property, income, assets, source of income, debts, or personal or domestic expenditures (including

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those of any member of his or her family or household) unless that information is necessary in

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investigating a possible conflict of interest with respect to the performance of his or her official

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duties, or unless the disclosure is required by law.

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     42-28.6-4. Right to hearing -- Notice request for hearing -- Selection of hearing

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committee.

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     (a) If the investigation or interrogation of a law enforcement officer results in the

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recommendation of some action, such as demotion, transfer, dismissal, loss of pay, reassignment,

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or similar action which would be considered a punitive measure, then, before taking such action,

 

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the law enforcement agency shall give notice to the law enforcement officer that he or she is entitled

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to a hearing on the issues by a hearing committee. The law enforcement officer may be relieved of

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duty subject to § 42-28.6-13 of this chapter, and shall receive all ordinary pay and benefits as he or

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she would have if he or she were not charged.

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     Disciplinary action for violation(s) of departmental rules and/or regulations shall not be

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instituted against a law enforcement officer under this chapter more than three (3) years after such

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incident, except where such incident involves a potential criminal offense, in which case

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disciplinary action under this chapter may be instituted at any time within the statutory period of

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limitations for such offense.

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     (b) Notice under this section shall be in writing and shall inform the law enforcement

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officer of the following:

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     (i) The nature of the charge(s) against him or her and, if known, the date(s) of the alleged

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offense(s);

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     (ii) The recommended penalty;

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     (iii) The fact that he or she has five (5) days from receipt of the notice within which to

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submit a written request for a hearing; and

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     (iv) The name and address of the officer to whom a written request for a hearing (and other

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related written communications) should be addressed.

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     (c) The law enforcement officer shall, within five (5) days of his or her receipt of notice

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given pursuant to subsection (b) herein, file a written request for hearing with the officer designated

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in accordance with subdivision (b)(iv). Failure to file a written request for a hearing shall constitute

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a waiver of his or her right to a hearing under this chapter; provided, however, that the presiding

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justice of the superior court, upon petition and for good cause shown, may permit the filing of an

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untimely request for hearing.

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     (d) The law enforcement officer shall provide the charging law enforcement agency with

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the name of one active or retired law enforcement officer to serve on the hearing committee, within

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five (5) days of the filing of his or her request for a hearing. Failure by the law enforcement officer

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to file his or her filing committee selection within the time period shall constitute a waiver of his

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or her right to a hearing under this chapter; provided, however, that the presiding justice of the

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superior court, upon petition and for good cause shown, may permit the filing of an untimely

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hearing committee selection by the officer. The charging law enforcement agency may impose the

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recommended penalty during the pendency of any such petition.

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     (e) The charging law enforcement agency shall provide the law enforcement officer with

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the name of one active or retired law enforcement officer to serve on the hearing committee, within

 

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five (5) days of its receipt of the officer's request for a hearing. Failure by the charging law

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enforcement agency to file its hearing committee selection within that time period shall constitute

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a dismissal of all charges against the law enforcement officer, with prejudice; provided, however,

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that the presiding justice of the superior court, upon petition and for good cause shown, and permit

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the filing of an untimely hearing committee selection by the agency. Except as expressly provided

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in § 42-28.6-13 of this chapter, no disciplinary action shall be taken against the officer by virtue of

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the stated charges during the pendency of any such petition.

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     (f) Within five (5) days of the charging law enforcement agency's selection of a hearing

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committee member, the hearing committee members selected by the officer and by the agency

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shall:

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     (i) Jointly select a third hearing committee member, who shall serve as chairperson of the

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hearing committee;

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     (ii) Petition the presiding justice of the superior court to select a third hearing committee

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member, who shall be an active law enforcement officer, and who shall serve as chairperson of the

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hearing committee; or

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     (iii) Agree to an extension of time, not to exceed thirty (30) days, for the selection of a third

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hearing committee member.

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     (g) Law enforcement officers selected to serve on a hearing committee under this chapter

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shall be relieved of duty for each day of actual hearing and shall be compensated by their respective

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agencies at their ordinary daily rate of pay for each day actually spent in the conduct of the hearing

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hereunder.

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     (h) Two (2) lists of active police officers available to serve as chairpersons of hearing

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committees under this chapter shall be provided annually to the presiding justice of the superior

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court. One list shall be provided by the Rhode Island Police Chiefs' Association; the other shall be

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appointed, jointly, by the Fraternal Order of Police and the International Brotherhood of Police

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Officers. In selecting officers to serve as chairpersons of hearing committees under this chapter,

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the presiding justice shall alternate between the two (2) lists so provided.

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     (i) Whenever a law enforcement officer faces disciplinary action as a result of criminal

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charges, the provisions of subsections (c), (d), (e) and (f) shall be suspended pending the

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adjudication of said criminal charges.

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     42-28.6-5. Conduct of hearing.

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     (a) The hearing shall be conducted by the hearing committee selected in accordance with

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§ 42-28.6-4 of this chapter. Both the law enforcement agency and the law enforcement officer shall

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be given ample opportunity to present evidence and argument with respect to the issues involved.

 

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Both may be represented by counsel.

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     (b) The hearing shall be convened at the call of the chair; shall commence within thirty

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(30) days after the selection of a chairperson of the hearing committee; and shall be completed

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within sixty (60) days of the commencement of the hearing. The hearing committee shall render a

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written decision within thirty (30) days after the conclusion of the hearing. The time limits

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established in this subsection may be extended by the presiding justice of the superior court for

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good cause shown.

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     (c) Not less than ten (10) days prior to the hearing date, the charging law enforcement

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agency shall provide to the law enforcement officer:

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     (i) A list of all witnesses, known to the agency at that time, to be called by the agency to

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testify at the hearing;

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     (ii) Copies of all written and/or recorded statements by such witnesses in the possession of

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the agency; and

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     (iii) A list of all documents and other items to be offered as evidence at the hearing.

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     (d) Not less than five (5) days prior to the hearing date, the law enforcement officer shall

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provide to the charging law enforcement agency a list of all witnesses, known to the officer at that

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time, to be called by the officer to testify at the hearing.

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     (e) Failure by either party to comply with the provisions of subsections (c) and (d) of this

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section shall result in the exclusion from the record of the hearing of testimony and/or evidence not

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timely disclosed in accordance with those subsections.

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     42-28.6-6. Evidence at hearing -- Hearing record.

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     (a) Evidence which possesses probative value commonly accepted by reasonable and

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prudent persons in the conduct of their affairs shall be admissible and shall be given probative

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effect. The hearing committee conducting the hearing shall give effect to the rules of privilege

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recognized by law, and may exclude incompetent, irrelevant, immaterial, and unduly repetitious

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evidence. All records and documents which any party desires to use shall be offered and made part

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of the record.

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     (b) No statements, documents and/or other evidence and no copies of any statements,

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documents and/or other evidence shall be presented to the hearing committee prior to the hearing.

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     (c) All proceedings before the hearing committee shall be recorded by stenographic record,

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the expense of which shall be borne by the charging law enforcement agency. A copy of the record

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shall be provided to the law enforcement officer or his or her attorney or representative of record

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upon request.

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     42-28.6-7. Subpoena -- Oath -- Production of documents.

 

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     With respect to the subject of any investigation or hearing conducted pursuant to this

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section, the hearing committee may subpoena witnesses and administer oaths or affirmations and

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examine any individual under oath, and may require and compel the production of records, books,

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papers, contracts, and other documents.

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     42-28.6-8. Witness fees.

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     Witness fees and mileage, if claimed, shall be allowed the same as for testimony in the

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superior court. Witness fees, mileage, and the actual expenses necessarily incurred in securing

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attendance of witnesses and their testimony shall be itemized, and shall be paid by the law

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enforcement agency if the officer is ultimately found innocent.

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     42-28.6-9. Cross-examination and rebuttal.

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     Every party has the right of cross-examination of the witnesses who testify, and may submit

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rebuttal evidence.

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     42-28.6-10. Judicial notice.

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     The hearing committee conducting the hearing may take notice of judicially cognizable

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facts and, in addition, may take notice of general, technical, or scientific facts within its specialized

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knowledge.

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     42-28.6-11. Decisions of hearing committee.

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     (a) The hearing committee shall be empowered to sustain, modify in whole or in part, or

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reverse the complaint or charges of the investigating authority, as provided in § 42-28.6-4.

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     (b) Any decision, order, or action taken as a result of the hearing shall be in writing and

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shall be accompanied by findings of fact. The findings shall consist of a concise statement upon

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each issue in the case. Copies of the decision or order and accompanying findings and conclusions

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shall be delivered or mailed promptly to the law enforcement officer or to his or her attorney or

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representative of record and to the law enforcement agency or to its attorney or representative of

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record.

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     (c) In any proceeding under this chapter, it shall be the burden of the charging law

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enforcement agency to prove, by a fair preponderance of the evidence, that the law enforcement

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officer is guilty of the offense(s) or violation(s) of which he or she is accused.

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     42-28.6-12. Appeals.

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     (a) Appeals from all decisions rendered by the hearing committee shall be to the superior

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court in accordance with §§ 42-35-15 and 42-35-15.1. For purposes of this section, the hearing

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committee shall be deemed an administrative agency and its final decision shall be deemed a final

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order in a contested case within the meaning of §§ 42-35-15 and 42-35-15.1.

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     (b) Within thirty (30) days after the service of the complaint in accordance with § 42-35-

 

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15, or within further time allowed by the court, the hearing committee shall transmit to the

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reviewing court the original or a certified copy of the entire record of the proceeding under review.

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By stipulation of all parties to the review proceedings, the record may be shortened. Any party

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unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional

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costs. The court may require or permit subsequent corrections or additions to the record.

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     42-28.6-13. Suspensions.

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     (a) The provisions of this chapter are not intended to prohibit suspensions by the chief or

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the highest ranking officer of the law enforcement agency.

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     (b) Summary punishment of two (2) days' suspension without pay may be imposed for

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minor violations of departmental rules and regulations. Appeals of suspension under this subsection

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shall be subject to the grievance provisions of any applicable collective bargaining agreement.

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     (c) Suspension may be imposed by the chief or the highest ranking sworn officer of the law

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enforcement agency when the law enforcement officer is under investigation for a criminal felony

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matter. Any suspension shall consist of the law enforcement officer being relieved of duty, and he

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or she shall receive all ordinary pay and benefits as he or she would receive if he or she were not

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suspended. Suspension under this subsection shall not exceed one hundred eighty (180) days.

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     (d) Suspension may be imposed by the chief or highest ranking sworn officer of the law

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enforcement agency when the law enforcement officer in under investigation for a misdemeanor

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criminal matter. Any such suspension shall consist of the law enforcement officer being relieved

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of duty, and he or she shall receive all ordinary pay and benefits as he or she would receive if he or

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she were not suspended. Suspension under this subsection shall not exceed thirty (30) days;

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provided, however, that if an officer is charged with a misdemeanor offense the chief or highest

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ranking sworn officer of the law enforcement agency may continue said suspension with pay up to

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a total of one hundred and eighty (180) days. If the disposition of the criminal matter does not take

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place within one hundred eighty (180) days of the commencement of such suspension, the law

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enforcement officer may be suspended without pay and benefits; provided, however, that the

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officer's entitlement to such medical insurance, dental insurance, disability insurance and life

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insurance as is available to all other officers within the agency shall not be suspended. The law

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enforcement officer may petition the presiding justice of the superior court for a stay of the

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suspension without pay, and such stay shall be granted upon a showing that said delay in the

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criminal disposition was outside the law enforcement officer's control. In the event the law

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enforcement officer is acquitted of any misdemeanor related thereto, the officer shall be forthwith

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reinstated and reimbursed all salary and benefits that have not been paid during the suspension

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period.

 

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     (e) Suspension may be imposed by the chief or highest ranking sworn officer of the law

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enforcement agency when the law enforcement officer is under investigation for a noncriminal

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matter. Any such suspension shall consist of the law enforcement officer being relieved of duty,

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and he or she shall receive all ordinary pay and benefits as he or she would receive if he or she were

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not suspended. Suspension under this subsection shall not exceed fifteen (15) days or any other

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time frame established under the provisions of any applicable collective bargaining agreement.

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     (f) Suspension may be imposed by the chief or highest ranking sworn officer of the law

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enforcement agency upon receipt of notice or disciplinary action in accordance with § 42-28.6-4(b)

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of this chapter in which termination or demotion is the recommended punishment. Any such

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suspension shall consist of the law enforcement officer being relieved of duty, and he or she shall

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receive all ordinary pay and benefits as he or she would receive if he or she were not so suspended.

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     (g) Any law enforcement officer who is charged, indicted or informed against for a felony

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or who is convicted of and incarcerated for a misdemeanor may be suspended without pay and

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benefits at the discretion of the agency or chief or highest ranking sworn officers; provided,

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however, that the officer's entitlement to medical insurance, dental insurance, disability insurance

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and life insurance as is available to all other officers within the agency shall not be suspended. In

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the event that the law enforcement officer is acquitted of any felony related thereto, the officer shall

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be reinstated and reimbursed forthwith for all salary and benefits that have not been paid during the

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suspension period.

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     (h) Any law enforcement officer who is convicted of a felony shall, pending the prosecution

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of an appeal, be suspended without pay and benefits; provided, however, that the officer's

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entitlement to such medical insurance, dental insurance, disability insurance and life insurance as

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is available to all other officers within the agency shall not be suspended. Whenever, upon appeal,

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such conviction is reversed, the suspension under this subsection shall terminate and the law

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enforcement officer shall forthwith be paid the salary and benefits that would have been paid to

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him or her during that period of suspension.

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     (i) Any law enforcement officer who pleads guilty or no contest to a felony charge or whose

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conviction of a felony has, after or in the absence of a timely appeal, become final may be dismissed

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by the law enforcement agency and, in the event of such dismissal, other provisions of this chapter

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shall not apply.

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     42-28.6-14. Retaliation for exercising rights.

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     (a) No law enforcement officer shall be discharged, demoted, disciplined, or denied

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promotion, transfer or reassignment, or otherwise discriminated against in regard to his or her

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employment or be threatened with any such treatment, by reason of his or her exercise of or demand

 

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for rights granted in this subtitle, or by reason of the lawful exercise of his or her constitutional

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rights.

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     (b) Any law enforcement officer who is denied any right afforded by this subtitle may

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apply, either individually or through his or her certified or recognized employee organization, to

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the superior court where he or she resides or is regularly employed for any order directing the law

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enforcement agency to show cause why the right should not be afforded.

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     42-28.6-15. Exclusivity of remedy.

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     The remedies contained herein shall be the sole and exclusive remedies for all law

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enforcement officers subject to the provisions of this chapter.

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     42-28.6-16. Immunity of hearing committee members.

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     No member of a hearing committee constituted in accordance with the provisions of this

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chapter shall be held civilly liable for any breach of his or her duties as such member, provided that

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nothing herein shall eliminate or limit the liability of a qualified member:

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     (1) For acts or omissions not in good faith or which involve intentional misconduct or a

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knowing violation of law; or

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     (2) For any transaction from which such member derived an improper personal benefit; or

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     (3) For any malicious, willful or wanton act.

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     42-28.6-17. Severability.

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     If any provision of this chapter or other application thereof shall for any reason be judged

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invalid such a judgment shall not affect, impair or invalidate the remainder of the law, but shall be

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confined in its effect to the provisions or application directly involved in the controversy giving

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rise to the judgment.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

OFFICERS' BILL OF RIGHTS

***

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     This act would repeal the Law Enforcement Officers’ Bill of Rights, Chapter 42-28.6 of

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the General Laws, in its entirety.

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     This act would take effect upon passage.

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