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An ordinance of the Council of the County of Allegheny, Commonwealth of Pennsylvania, amending and supplementing the Allegheny County Code of Ordinances, Division 9, entitled “Conduct,” through the creation of a new Chapter 910, entitled “Law Enforcement Personnel,” in order to establish standards for individuals undertaking enforcement actions within Allegheny County.
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WHEREAS, Allegheny County has historically attempted to foster a tradition of strong bonds of trust between its law enforcement officers and the community, in an effort to establish a cooperative attitude towards legal compliance and public safety; and
WHEREAS, while these efforts have by no means been perfect, significant progress has been made towards professionalizing and modernizing law enforcement activities throughout the County; and
WHEREAS, a foundational principle in this process has been the necessity of law enforcement personnel abiding by the very laws that they enforce, and doing so in a fashion that provides for accountability if and when those requirements are violated; and
WHEREAS, it is the judgment of Council that allowing any enforcement personnel to conceal their identity provides an obvious opportunity for unscrupulous individuals to impersonate law enforcement personnel for their own ends, in violation of 18 Pa.C.S.A. §4912 (establishing a criminal offense for impersonating a public official) and, in the process, undermines the very trust and accountability that are the goals of modern law enforcement; and
WHEREAS, it has long been held by the United States Courts that federal law enforcement officers are subject to qualified immunity, which insulates them from civil liability unless they violate a clearly established Constitutional or statutory right; and
WHEREAS, simply put, the doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (S.Ct. 1982). Qualified immunity balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (S.Ct. 2004) (KENNEDY, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (S.Ct. 1978), for the proposition that qualified immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law").; and
WHEREAS, as formulated by the United States Supreme Court, the concept of qualified immunity provides no immunity from criminal liability, and while Commonwealth law does on occasion apply special exceptions to criminal statutes in recognition of the specialized duties of law enforcement personnel, Pennsylvania law does not outright exempt law enforcement personnel from liability for criminal offenses that they might commit; and
WHEREAS, it is accordingly also the judgment of Council that County legal standards for law enforcement personnel operating within the County should be clearly established in order to define the statutory rights that apply in the context of qualified immunity, and that doing so inures to the benefit of both the public and law enforcement officers;
The Council of the County of Allegheny hereby enacts as follows:
SECTION 1. Incorporation of the Preamble.
The preamble to this ordinance is hereby incorporated by reference.
SECTION 2. Enactment of New Part 13.
The Allegheny County Code of Ordinances, Division 9, entitled “Conduct,” is hereby amended and supplemented through the creation of a new Chapter 910, entitled “Enforcement Personnel,” and comprised as follows:
Chapter 910
Enforcement Personnel
§910.01. Purpose and Intent.
A. It is the intent of this Chapter to define the structure of the scope of duty, as well as substantive obligations of certain law enforcement operating within Allegheny County.
B. Transparency in governmental actions, including for officers of the peace, is essential to create the trust between community members and agents of state, local, and federal government that is needed for public safety.
C. Accountability to the public is an inherent attribute of a democracy, and the ability for members of the public to know basic information about agents of the government with minimal exemptions is vital in a democratic society. The need for accountability is heightened when state actors are granted policing power by the people. A state, local, and federal government that is accountable to the public is essential for democracy and safety.
D. The primary purposes of this Chapter are to:
1. Properly protect people living within Allegheny County by defining their rights to transparency and accountability for local, state, and federal law enforcement; and
2. Establish clear statutory rights for the purpose of defining the limitations of qualified immunity for Law Enforcement Officers within Allegheny County, as defined in this Chapter.
§910.02 Definitions.
The following words and phrases shall have the meanings established herein, unless context clearly indicates to the contrary:
A. “Law Enforcement Officer: shall mean any "peace officer" as defined in 18 Pa.C.S.A. § 501 (relating to definitions), including but not limited to local, state or federal officers.
§910.03. Concealment Prohibited.
Except as provided for in §910.04, a Law Enforcement Officer is guilty of criminal
concealment if such Law Enforcement Officer, while performing official duties and interacting with the public within Allegheny County:
A. Wears a mask, facial covering, disguise or any other garment that obscures the identity of the law enforcement officer, or fails to identify themselves to a subject of arrest, holding or detention;
B. Intentionally obscures, covers, removes or otherwise conceals a badge, tag, label or other identifying information required to be visibly displayed;
C. Uses a vehicle in the course of official duties that does not contain clear identifying information for the entity that employs the law enforcement officer which is visible to individuals other than such law enforcement officer; or
D. Fails to provide identifying information upon request to the subject of an arrest after an arrest has been made.
§910.04. Exceptions.
A. A law enforcement officer shall not be in violation of §910.03.A. if the officer:
1. Wears a medical-grade mask or respirator necessary to prevent the transmission of airborne illnesses;
2. Wears a mask for a religious purpose;
3. Wears protective equipment designed to safeguard the face or head issued as part of duties associated with a Special Weapons and Tactics team; or
4. Wears an item as a mask designed to protect against smoke or hazardous conditions during fire response or similar emergencies.
B. A Law Enforcement Officer shall not be in violation of subsection §910.03 if the law enforcement officer is engaged in an undercover assignment, approved by a supervisor, in which concealing identity is necessary for investigating criminal offenses.
§910.05. Violations and Enforcement.
A. A violation of this Chapter shall be a summary offense and upon conviction thereof, a violator shall be sentenced to pay a fine not to exceed five hundred dollars ($500) per violation or undergo imprisonment for a period not exceeding ninety (90) days per violation, or both, in addition to any other penalties imposed. For the purposes of this Section, each day upon which an individual was not compliant with the terms of this Chapter shall constitute a separate offense.
B. The Allegheny County District Attorney shall have the right to bring an action in a court of competent jurisdiction in this Commonwealth against any law enforcement officer under the terms of this section.
C. Nothing contained within this Chapter shall be read, interpreted, or otherwise construed to limit the authority of the Allegheny County District Attorney to prosecute any Law Enforcement Officer as defined herein for any other violation of Commonwealth or County law.
§910.06. Private Right of Action.
A. A Law Enforcement Officer shall be liable for tortious failure to make identifying information available if the Law Enforcement Officer, while performing official duties and interacting with the public, commits any violation of this Chapter.
B. The Allegheny County Solicitor or any individual aggrieved by a violation of this Chapter or any entity a member of which is aggrieved by a violation of this Chapter may bring a civil action in a court of competent jurisdiction against a person violating the terms of this Chapter. The limitations period for a civil action brought pursuant to this Section shall be three (3) years from the date the complainant knew or should have known of the alleged violation.
C. A court of competent jurisdiction may order the following remedies in the event that a plaintiff proves by a preponderance of the evidence that the alleged violation took place and the defendant(s) fail to prove by clear and convincing evidence that an exception to the terms of this Chapter as defined in §910.04 applied at the time of the violation:
1. An order requiring the individual, department or agency to cease and desist the unlawful practice;
2. Payment of compensatory or punitive damages, provided that an aggrieved person shall make a reasonable effort to mitigate any damages;
3. Payment of reasonable attorney fees;
4. Payment of court costs;
5. Payment of a fine not to exceed two thousand dollars ($2,000) per individual committing a violation, for each day upon which the violation took place; and
6. Other equitable relief.
D. The civil penalties established pursuant to the terms of this Section shall not in any way impact or alter the applicability of the criminal penalties established under the terms of §910.05.
SECTION 3. - Effective Date.
The terms of this Ordinance shall become effective immediately upon the date of final approval.
SECTION 4. - Severability.
If any provision of this Ordinance shall be determined to be unlawful, invalid, void or unenforceable, then that provision shall be considered severable from the remaining provisions of this Ordinance which shall be in full force and effect.
SECTION 5. - Repealer.
Any Resolution or Ordinance or part thereof conflicting with the provisions of this Ordinance is hereby repealed so far as the same affects this Ordinance.