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A Night To Remember

Police Unions: Obstacles to Criminal Justice Reform and Police Accountability

Special Privileges That Shield Corrupt Cops

On October 20, 2014, a White Chicago police officer shot and killed a 17-year-old Black man named LaQuan McDonald. Five officers at the scene, including the shooter, said that McDonald had been slicing tires with a three-inch knife. According to these officers, when they arrived on scene, McDonald began waving the knife in an “aggressive, exaggerated manner and lunged at them,” forcing one officer to shoot and kill the teen in self-defense.

Two months later, Craig Futterman from the University of Chicago and Jamie Kalven of the Invisible Institute announced that an anonymous whistleblower had informed them of a police dashboard video that would cast the shooting in a completely different light. They also found a civilian witness to the shooting who said that police “shooed witnesses away” after the shooting. And in May 2015, the manager of a nearby Burger King told the local news that immediately after the shooting, police officers deleted all the restaurant’s surveillance video footage from the time period surrounding the incident.

Finally, in November 2015, a state court ordered the release of the dashcam video in response to freelance journalist Brandon Smith’s Freedom of Information Act request. The video showed the teenager walking away from officers with the knife at his side in his hand furthest from the officers. All avenues of escape were blocked by officers’ vehicles, and no civilians were within his reach. Officer Jason Van Dyke is seen exiting his patrol car. He takes a step toward McDonald and shoots him in the abdomen. McDonald immediately falls to the ground. Van Dyke then unloads his clip into the teen’s body, firing 16 rounds in 14 seconds as “white puffs of smoke become visible.”

Based on the video, Van Dyke was charged with murder. It was discovered that he had been named in more civilian complaints than 96.7% of all Chicago police officers since 2001. Of 20 citizen complaints against him, 10 of them alleged he used excessive force, two involved the use of a firearm, and one claimed he used racial slurs. A jury awarded one of his victims $350,000 after finding that Van Dyke “employed excessive force during a traffic stop.”

Shockingly, the Chicago Police Department had never pursued disciplinary action against Van Dyke or even flagged his behavior as being a problem. Instead, four officers lied on his behalf to cover up a murder. And one or more officers sent witnesses away and deleted the surveillance video footage. How did this happen?

Illinois, like at least 40 other states, permit police officers “to bargain collectively with regard to policy matters directly affecting wages, hours, and terms and conditions of employment.” 5 ICSA § 315/4. Courts have interpreted phrases such as “terms and conditions of employment” to allow or require police management to negotiate the internal procedures used to investigate and punish officers suspected of misconduct. See, e.g., Union Twp. Bd. of Trs. v. Fraternal Order of Police, Ohio Valley Lodge No. 112, 766 N.E.2d 1027 (Ohio 2001).

The parties to these negotiations are usually the government entity charged with managing the particular police agency (e.g., the state, city, county, township, etc.) and the unions representing the officers. The contracts negotiated between the parties are commonly referred to as Collective Bargaining Agreements or CBA.

Additionally, Illinois is one of at least 16 states that has a Law Enforcement Officer Bill of Rights or LEOBR. The LEOBR is a statute passed by the state legislature. As discussed below, it is the special privileges contained in these CBA and LEOBR that prevent the discipline and removal of officers like Van Dyke, resulting in ongoing abuses, even murders, of the public by dangerously unfit officers.

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the U.S. Supreme Court ruled that when a state creates an expectation of employment, the public employee has a property interest in keeping that employment. The employee may not be terminated for misconduct without a prior hearing. The hearing must comport with due process, requiring notice and an opportunity for the employee to respond to the accusation. But police-union CBA and LEOBR grant police special privileges during the disciplinary process not available to other public employees.

Stephen Rushin, assistant professor from the University of Alabama School of Law, conducted an in-depth review of the LEOBR from 16 states and 178 CBA with police departments from American cities with populations of 100,000 or more. The CBA are estimated to cover approximately 41% of all of America’s “frontline police officers,” a term excluding ranking officers such as sergeants, lieutenants, captains, etc. The states with a LEOBR employ roughly 37.4% of all municipal officers.

Rushin identified seven provisions that are commonly found in the LEOBR and CBA that shield or protect frontline officers suspected of engaging in misconduct from being held accountable. He characterized these seven provisions as: (1) Delays Interview, (2) Provides [Officer] Access to Evidence Before Interview, (3) Limits Consideration of Disciplinary History, (4) Limits Length of Investigation or Establishes Statute of Limitations, (5) Limits Anonymous Complaints, (6) Limits Civilian Oversight, and (7) Provides for Arbitration. At least one of these provisions was found in about 88% of the CBA and in 13 of the 16 LEOBR.

The most unjustifiable provision is number (1), Delay of Interviews. Rushin found that 50 of the CBA have a required waiting period before an officer suspected of wrongdoing may be interviewed. The delay privilege is also found in seven of the LEOBR.

In Illinois, after an incident or complaint of possible misconduct (such as use of excessive or lethal force), investigators must wait 48 hours before questioning any officer involved in the incident or questioning any officer who may have witnessed the incident. This waiting period is allegedly for the purpose of allowing officers to secure either the presence of an attorney or a union representative. In Maryland’s LEOBR, this waiting period is five business days (and it can be extended by the police chief). And in Louisiana’s LEOBR, it is a whopping 30 days.

Police unions have also argued these periods are necessary as “cool-down periods” on the premise that officers are under tremendous stress, and the cool-down period is necessary to enable the officer to better recollect what happened during the incident in question. But the scientific evidence does not support this theory.

Critics of these provisions argue that the only logical purpose is to give officers time to invent a cover story to evade accountability for wrongdoing. And it would appear the critics have the more plausible explanation.

According to Professor Rushin, it is a “best practice” for investigators to question officers involved in shootings or other incidents of possible misconduct as soon as possible because any delays in questioning may impair the ability to uncover what happened. This is supported by a report authored by Aziz Z. Huq and Richard H. McAdams from the University of Chicago Legal Forum. They write that the “1999 and 2003 guides to the collection and use of eyewitness evidence prepared by the Department of Justice, under different Attorneys General, advise: ‘Plan to conduct the interview as soon as the witness is physically and emotionally capable.’” The 2003 guide explicitly explains: “Once the witness is capable, any delay in conducting the interview should be minimized as there will be less detailed information as time goes on.” According to Huq and McAdams, “[t]he National Forensic Science and Technology Center similarly advises that ‘[t]he timely interviewing of witnesses is crucial to the solution of a crime. Witnesses to crimes must be identified, secured, [and] questioned at the scene.’”

All individuals involved in the incident should be separated immediately to prevent officers from conspiring to create a story that exonerates all officers of misconduct. Another reason for separation is so that each person will give an independent account, i.e., if one witness hears other witnesses giving an account that is different from his or her personal recollection, he or she may give an altered account simply to corroborate that given by the other witnesses.

Federal consent decrees in Los Angeles, Seattle, New Orleans, and Albuquerque bear this out. Those decrees require independent investigators to report to the scene of a serious use of force as soon as possible. Witnesses are separated and investigators take statements from the involved officers and witnesses while at the scene of the incident.

In Illinois State Police v. Fraternal Order of Police Troopers Lodge No. 41, 751 N.E.2d 1261 (Ill. App. Ct. 2001), the police union argued that the delay period required in the CBA applied not only to internal investigations of officer misconduct but also to investigations of officers suspected of criminal conduct. The Illinois Court of Appeals ruled that interrogation delays “contravene []” the internal affairs division’s “ability to investigate crimes” because the division “presented the undisputed testimony that the element of surprise is very important in conducting a criminal interrogation.” The same principle should hold true when investigating police misconduct that may not be criminal.

In cases of suspected use of excessive force, it would not be readily clear if it were a criminal investigation. That is, if the amount of force is not justified, then it is either the crime of assault and battery or homicide. Yet these investigatory delays apply before any determination can be made of whether a lawful amount of force was employed.

Professor Rushin’s provision (2) that requires suspected officers be provided the evidence before they are interviewed is also very disturbing. The CBA between the city of Miami, Florida, and the Fraternal Order of Police, Miami Lodge No. 20 requires that before an officer suspected of wrongdoing may be interviewed all identifiable witnesses must be interviewed beforehand, and the officer must be given “all witness statements, including all other existing subject officer statements, and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation.” It would be inconceivable to most police officers if they had to provide this evidence to a criminal suspect before interrogating him or her.

What plausible reason can be put forth to justify such a provision? Is it to allow a false story to be concocted that comports with the available evidence?

Provision (3), limiting consideration of an officer’s disciplinary history, was present in 87 of the CBA and in two of the LEOBR examined by Professor Rushin. For example, in 2018, the CBA between the city of Cleveland and the Cleveland Police Patrolmen’s Association provided that if an officer is suspended for disciplinary reasons that suspension cannot be considered at any future disciplinary hearing if the suspension was three or more years in the past.

And in many CBA, disciplinary records are destroyed. Honolulu’s contract specifies that all disciplinary records be removed from an officer’s personnel file after two years and destroyed after four years. In Baton Rouge, complaints of sexual misconduct or harassment are destroyed after five years. In Cincinnati, records of officer misconduct resulting in a suspension of up to 30 days are kept for only three years, but records of disciplinary suspensions lasting longer than 30 days “may be” kept “up to five years.”

Such provisions shield officers engaging in a pattern of abusive, unconstitutional, and even criminal conduct from being detected. Further, if an officer is suspended for using excessive force and is then found guilty of using excessive force a second time, basic principles of fairness require that the earlier incident ought to be considered when deciding the penalty for the current infraction. Is that not the same principle of justice behind criminal statutes that provide increased penalties for repeat offenders such as “driving under the influence, second offense?” Is that not why courts review a defendant’s presentence report and consider any prior criminal convictions?

Professor Samuel Walker of the University of Nebraska at Omaha explains how destroying disciplinary records prevents officer accountability: “Early Intervention Systems (EIS) have emerged as a ‘best practice’ in law enforcement over the past twenty years. EIS are included in all of the settlements (consent decrees, memoranda of agreement, negotiated settlement agreements) negotiated by the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice. An EIS is a computerized data base of officer performance. It includes anywhere from five to 25 performance indicators (e.g., uses of force, citizen complaints, resisting arrest charges, being named in a civil suit against the department). An EIS includes all citizen complaints and all reported uses of force regardless of the outcome of the department investigation of each incident. The basic principle is that an EIS should capture the most complete picture of an officer’s performance. Most citizen complaints are not sustained, but it is a revealing indicator of an officer’s performance if an officer receives complaints at a much higher rate than peer officers. Meaningful police accountability requires as full a picture of an officer’s performance record, and any procedure for expunging records is an impediment to accountability.”

Professor Rushin identified limitations on the length of investigations of complaints (provision (4), above) as being problematic to holding officers accountable. While it is easy to see why an officer has a right to a timely investigation and disposition of any allegations against him or her, some of these limitation-periods on investigations are absurdly short. In Anchorage, Alaska, internal investigations of civilian complaints must be completed within 45 days. In Lincoln, Nebraska, complaints alleging misconduct more than 45 days earlier cannot be investigated. In Columbus, Ohio, it is 90 days. In San Antonio, Texas, and Seattle, Washington, it is 180 days. These are but a few examples.

But Profession Rushin also included in provision (4) contracts that establish a statute of limitations on complaints. Again, the reasonableness of requiring complaints to be filed within a certain time from when the alleged misconduct occurred is clear. Primarily, the task of identifying and locating witnesses is affected by delay in reporting misconduct. Additionally, delay will affect a witness’ memory. But some instances of police misconduct do not even become known until after a statute of limitations has run. As an example, between 1972 and 1991, Chicago Police Commander Jon Burge and his “midnight crew” tortured over 100 people in Chicago’s impoverished South Side with electric shocks, beatings, smotherings, and simulated Russian roulette. Burge was fired in 1993 but remarkably not because of his decades of horrific violence. As evidence of his misconduct began to come to light, Chicago could not investigate because the CBA required that misconduct occurring more than five years earlier could not be investigated. (This became known as the “Burge rule.”)

Another troubling provision found in 32 of the CBA and four of the LEOBR is that of limiting anonymous complaints. Some CBA require the complaint to be in the complainant’s own handwriting and accompanied with a sworn affidavit. Often, victims of assault by officers are afraid to report for fear of retaliation by that officer or by his colleagues. Undocumented immigrants fear legal repercussions from reporting. In these cases, police misconduct goes unreported. If an anonymous complaint provides adequate details of misconduct and names potential witnesses, why shouldn’t it be investigated? Anonymous tips are often sufficient to investigate private citizens for potential criminal conduct. Why shouldn’t they similarly be sufficient to investigate allegations of official misconduct by police?

Another type of provision Professor Rushin found in 41 of the CBA and three of the LEOBR related to limiting the power of civilian oversight boards. As early as 1928, the Los Angeles Committee on Constitutional Rights urged that private citizens should examine citizen complaints. One of the first national reports to identify and discuss police misconduct as a nationwide problem was the Wickersham Commission Report, which recommended that police departments establish civilian agencies to help victims of police misconduct file complaints.

However, it was not until recently that civilian review boards (“CRB”) began to notably increase – from 13 in 1980 to around 70 in 1995. One estimate in 2003 claimed CRB existed in some form in around 80% of large police departments in the U.S.

But police unions have used CBA to block the ability of CRB to oversee police discipline. In fact, as explained below, police unions did not begin to resurface and reach political prominence until the 1960s, and opposition to civilian review was one of its chief rallying cries.

In Cleveland’s CBA, the civilian Police Review Board is prohibited from exercising any disciplinary power. In San Antonio, the Citizen Advisory Action Board is limited to making only advisory disciplinary recommendations and may not undertake any independent investigations of police misconduct. In Austin, only the Chief of Police decides the appropriate discipline, and no member of the civilian panel may publicly agree or disagree with the chief’s decision. These are but a few examples.

But one of the most troubling provisions found in 115 of the CBA examined by Professor Rushin relates to disciplinary decisions being subjected to arbitration. In general, arbitration is beneficial in the context of the public employee grievance process. Primarily because most public employees are prohibited by law from engaging in a strike, arbitration provides a forum to adjudicate perceived abuses and unfair treatment. But the manner in which arbitration serves to keep unfit police officers on the street to the peril of the public is a genuine travesty of justice.

As discussed above, for a host of reasons, many complaints against police are not even investigated. If a complaint is investigated, rarely is it determined to be “founded” or “substantiated.” An examination of 56,384 complaints of officer misconduct against police from the Chicago Police Department (“CPD”) from 2001 through 2015 revealed that the CPD determined 95.34% of those complaints were unsubstantiated and required no action. It is a rare occurrence for a complaint to result in disciplinary action. And if a penalty is imposed upon the officer found guilty of misconduct, the officer may appeal or grieve the decision to an arbitrator. Unbelievably, the arbitrator is often an attorney selected either by the union or by the officer who has been convicted of misconduct. The arbitrator’s decision is final. And in almost every case, the penalty that was meted out to the officer found guilty of professional misconduct is reduced or reversed.

According to a December 2, 2014, report from theatlantic.com, of the then most recent 15 arbitration cases in Oakland, California, where officers had appealed their punishments, the punishments were revoked in seven cases and reduced in five others. In Minnesota, where officer Derek Chauvin is accused of killing George Floyd, almost half of all officers who are fired because of egregious misconduct are reinstated after they appeal. In 2017, then-Oklahoma City Police Chief Bill Citty indicated that about 80% of penalties imposed against officers for misconduct are reduced or revoked in arbitration. Arbitrators often reduce or revoke penalties based on precedent. If an officer found guilty of misconduct can show that his penalty is more severe than the discipline received by another officer for the same misconduct, the rule is that the current officer cannot be punished more severely.

In an August 2017 report from The Washington Post, it was revealed that since 2006 America’s largest police departments had fired at least 1,881 officers for misconduct. Those departments were ordered to rehire 451 (24%) of them. At least 33 of those rehired had been charged with criminal offenses, and 17 had been convicted. The records of the firings/rehirings were from 37 police departments, and all 37 had one thing in common: a police union contract that guaranteed an appeal of disciplinary decisions.

In 2005, Boston Police Department (“BPD”) Officer Balthazar DaRosa was arrested for being drunk and disorderly at a nightclub but was released after being taken to the police station. Three months later, DaRosa drove his cousin away from that same club after the cousin shot and killed a man in the parking lot. The cousin has never been apprehended. The BPD fired DaRosa in 2010, saying both events at the club violated department policy. DaRosa appealed, and the arbitrator overturned the firing. The BPD was forced to rehire DaRosa in 2012 and pay him $50,111 in lost wages.

Since 2006, arbitrators have ordered Washington, D.C., to rehire 39 officers. More than half of these rehirings were ordered because the arbitrators concluded the department had missed a deadline during the internal investigation. One of those officers, Michael Suggs-Edwards, was fired after being convicted of sexually abusing a 19-year-old woman in his patrol car. In 2015, an arbitrator ordered that Suggs-Edwards be rehired.

In Oakland, California, officer Hector Jiminez shot and killed an unarmed man. Seven months later, he killed another unarmed man, shooting him three times in the back as he ran away. The city of Oakland paid $650,000 to the dead man’s family and fired Jiminez. After Jiminez appealed through his police union, he was reinstated and awarded back pay.

Usually, it is the police chief who orders the firings that are later overruled by arbitrators. “It’s demoralizing, but not just to the chief,” said Charles H. Ramsey, former Washington, D.C., chief of police. “It’s demoralizing to the rank and file who really don’t want to have those kinds of people in their ranks. It causes a tremendous amount of anxiety in the public. Our credibility is shot whenever these things happen.”

Accountability Roadblocks

In May 2015 – in the wake of the killing of Freddie Gray while he was in the custody of Baltimore police officers – Professor Samuel Walker produced a report titled “Impediments to Accountability” wherein he analyzed the contract between the city of Baltimore and Baltimore City Lodge No. 3, Fraternal Order of Police Unit 1. His analysis also included the LEOBR of Maryland.

Professor Walker first explained it is “completely unreasonable” that an officer cannot be questioned for 10 days (now amended to “five business days”) following an incident requiring an investigation by the department. As mentioned earlier, the alleged purpose for the five-day delay is to allow involved officers to secure representation before questioning. But Professor Walker observed that a union representative is available almost immediately after the incident and references “a widespread joke that the police union representative arrives on the scene before an investigator from internal affairs does.” Professor Walker then cited how the delay contravenes “best practices.” He concluded that the mandated delay is unreasonable and unacceptable.

Professor Walker also took issue with the LEOBR’s provision that an officer can be interrogated only by another sworn officer. This prevents the creation of an independent CRB as exists in Washington, D.C., San Francisco, and New York City where citizen complaints are investigated by members of the public who are not sworn officers. The provision “is an impediment to citizen oversight of the police and an obstacle to building legitimacy and trust in the police as recommended by the President’s Task Force on 21st Century Policing,” according to Professor Walker.

Paragraph 3.106.1 of the LEOBR is another provision that shields unfit officers from accountability. While the provision requires law enforcement agencies in Maryland to maintain a list of officers “who have been found guilty or alleged to have committed acts which bear on credibility, integrity, honesty, or other characteristics that would constitute exculpatory or impeachment evidence,” at the same time, it prohibits demotion, dismissal, suspension without pay, or a reduction in pay for officers placed on that list. An officer who is determined to have committed acts that demonstrate he or she has problems related to “credibility, integrity, or honesty” should not be allowed to continue on a police force. Law enforcement officers may arrest, detain, and use force – even lethal force. These powers granted to officers demand the highest in moral character and ethical behavior. How can a police department have officers with impaired credibility, integrity, and honesty that makes them unfit to even testify in a courtroom – and have so many of these tainted officers that it necessitates the keeping of a list? How can the public have any faith in such a police department? (In August 2020, the Maryland State Attorney at Baltimore, Marilyn J. Mosby, identified a whopping 305 officers “with integrity issues or allegations of integrity issues that would in essence put them in jeopardy from testifying.”) Why are these officers still carrying a gun and a badge? Maintaining them on the force “is an impediment to police accountability and serves to undermine public trust and confidence in the police.”

The Baltimore contract also states that notice of disciplinary actions may not be made public. This inhibits transparency and erodes any public confidence that the police department is disciplining officers for misconduct. Citizens have a right to know how an officer accused of official misconduct – such as use of excessive force – was disciplined. In most – perhaps all – states, the discipline of lawyers and medical professionals is made public. Those employees generally work for private agencies and certainly are not authorized to use force against the public. Why should police officers, who are public employees, be treated differently?

Paragraph 3-104(c) of Maryland’s LEOBR requires all complaints alleging brutality to be signed and sworn to by either the aggrieved party, a member of that party’s family, or a person with firsthand knowledge of the incident. All such complaints must be filed within 366 days of the incident. If a complaint does not comply with these provisions, an investigation that may lead to disciplinary action is prohibited. This prohibits anonymous complaints and complaints made by phone or email. What if injuries from excessive force prevent a complaint being filed within 366 days?

Reuters examined 82 police union contracts of large cities across the U.S. in 2017 and found that 20 cities allow officers found guilty of misconduct to substitute sick leave, holiday, or vacation time in lieu of suspensions. And according to the Police Union Contract Project at checkthepolice.org, 40 cities and three states have agreements indemnifying officers, requiring cities to pay all costs related to misconduct – including all legal fees and settlements.

One of the goals of suspensions is similar to fines. A financial loss is meant to “hurt,” in order to correct errant behavior. But allowing officers to substitute vacation days or holiday time in lieu of suspension defeats this purpose.

Additionally, when a civil suit results in a judgment against an officer or officers for egregious misconduct, the size of the award and attendant attorney fees should prompt changes in that police department. This is especially true if punitive damages are awarded. But when the city (or rather the insurance company as in most cases) pays these judgments, neither the involved officers nor the department is affected financially, so there’s no tangible incentive to change behavior and practices.

Control and Conformity

According to Wesley Slogan, author of Why Reform Fails, police managers “worry about laziness, corruption, racial profiling, and excessive force, and they do not trust rank-and-file officers on any of those dimensions.” Police administrators tend to be obsessively preoccupied with control and conformity of the rank-and-file. But police work inevitably requires discretionary judgment on the part of officers. And this means rules cannot always be followed.

Often, general rules do not provide meaningful guidance. This opens the door to rules not being consistently enforced. One officer is punished for violating a rule while another officer is not. Rank-and-file officers see this as arbitrary and discriminatory. This is the primary reason the relationship between rank-and-file officers and management is dominated by feelings of mistrust and uncertainty. Frontline officers believe discipline is meted out, not because of misconduct, but based on how well an officer is “liked” by upper management, whether the officer has criticized the chief or the department, and other personal opinions on matters not related to the alleged misconduct. To many rank-and-file officers, upper management is illegitimate, seeking to blame others when things go wrong.

For reasons discussed below, these officers also feel that the public is against them. They believe that people do not understand what they face each day or what they are up against.

Upper management pushes for an aggressive style of policing, especially in the era of the War on Drugs. When officers behave as “warriors” to carry out this style of policing, things go wrong, and management and the public blame the officers. Officers are evaluated on the number of arrests made, quantity of contraband seized, number of tickets/citations written, and similar quantitative metrics. All that matters in some departments is number of arrests, etc. One officer complained, “You don’t get recognized and rewarded for helping a homeless person get permanent housing, but you get recognized for arresting them again and again and again.”

According to Saki Knafo in “A Black Police Officer’s Fight Against the N.Y.P.D.,” the era of so-called “broken windows policing” was based on the idea “that police would cut down on serious crimes by making it clear that even trivial ones wouldn’t go unpunished.” Rank-and-file officers were ordered to indigent neighborhoods predominantly populated by people of color.

For example, in predominantly Black Bedford-Stuyvesant, officers issued more than 2,000 summonses a year between 2008 and 2011 to people riding their bicycles on the sidewalk. But in predominantly White Park Slope, an average of eight tickets a year were written for the same offense. When these racial inequities were uncovered, it was the rank-and-file who were held primarily to blame.

Perceiving themselves, with some justification, to be under attack by upper management and by the public, the rank-and-file generally behave as a tightly knit group of officers fiercely loyal to one another. This tends to promote an “us against them” worldview. The dynamic has been referred to as “the blue wall of silence” and “the blue line.”

The rise of police unions began with the rank-and-file. In the late 1800s and early 1900s, workers in every industry, including police, sought unionization to improve pay and working conditions and to gain some control over their work lives. In 1919, Boston police worked shifts of up to 17 hours per day, working from 73 to 98 hours per week. They had to buy their own uniforms, which in some cases was almost 10 percent of their annual pay. From 1898 until 1913, they did not receive any pay raise even though the cost of living doubled during the same period.

In August 1919, Boston police formed a union affiliated with the American Federation of Labor (“AFL”). The chief of police then suspended 17 union leaders. The following day, nearly 75% of Boston’s police officers walked out in protest. Violence and looting ensued.

Governor Calvin Coolidge sent in troopers who fired into the crowd, killing nine and wounding 23. It stopped the looting. But it also brought the collapse of AFL-affiliated police unions and created a backlash against unionization of government employees in general.

Police unions did not make a comeback until after World War II. In addition to local unions in various cities, some affiliated with the American Federation of State, County, and Municipal Employees founded in 1915 and the national Fraternal Order of Police founded in 1932. States began passing laws permitting collective bargaining by government employees with Wisconsin being the first to do so in 1959.

Unions gained a lasting foothold in America’s police departments in the late 1960s as rank-and-file officers believed they were under attack. The Civil Rights Movement of the 1960s criticized abusive police conduct, often portraying police as a symbol of an unjust society. The movement challenged racism and police brutality. One common caricature was to depict the police as “pigs.”

Students protesting America’s involvement in Vietnam were often beaten and clubbed by police. Police were shown on TV clubbing young Black people marching for basic civil rights. The Black Panther movement practiced militant self-defense against abusive police.

Community activists also pushed for reform within police departments as a solution to community unrest. Protests against excessive force were widespread.

For example, in July 1964, demonstrations and protests erupted in Harlem after a White police officer shot and killed Black teenager. By 1966, 43 cities were the site of protests over perceived police brutality and racism, with burning buildings and looting. Many cities sought to reign in their police forces through CRB.

Police also perceived the federal courts’ new rulings about constitutional procedures as an assault on law enforcement. In Mapp v. Ohio, 367 U.S. 643 (1961), the U.S. Supreme Court held that all evidence obtained by unlawful searches and seizures was inadmissible. Three years later, the Supreme Court held in Escobedo v. Illinois, 378 U.S. 478 (1964), that statements made by a suspect during interrogations after he had requested a lawyer could not be used in any prosecution. Then in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that police had to both inform a suspect of his Fifth Amendment rights to remain silent and to counsel and honor those rights when invoked. Police, especially the rank-and-file, perceived these opinions as obstacles to their ability to investigate, arrest, interrogate, and fight crime.

At the same time, the rank-and-file had no protection against misconduct charges and punishment. They had no means to submit grievances to upper management. Unsurprisingly, they joined unions that fought for due process protections in CBA, lobbied for those protections in the LEOBR, opposed CRB, and argued against constitutional procedural reforms. The legacy of the 1960s is the CBA and LEOBR with disciplinary provisions that protect officers from accountability for misconduct, limit CRBs, and oppose reform efforts.

Union Opposition to Reform, Transparency, and Oversight

The Violent Crime Control and Law Enforcement Act of 1994, now codified at 34 U.S.C. § 12601, permits the U.S. government to prosecute civil suits against any government entity to enjoin and remedy any pattern or practices of unconstitutional policing committed by law enforcement agencies under the control of municipalities or states. First, the Department of Justice (“DOJ”), via the Attorney General, authorizes an investigation of a particular police agency’s practices and procedures. If a pattern of misconduct is found, the DOJ is authorized to file a lawsuit. The suit can then either be settled through a consent decree where the government agency managing the police department agrees to make changes ordered in the decree to correct the pattern and/or practice of misconduct, or the suit will proceed to trial where the DOJ must prove all of the alleged violations. The DOJ may also forego filing a suit if the government agency agrees to correct the violations as directed in a DOJ memorandum. The overwhelming majority of suits are settled through consent decrees.

But a troubling trend is emerging when the DOJ files suit against the government agency: The police union joins the suit as an intervener pursuant to Federal Rule of Civil Procedure, Rule 24. The union claims it has an interest at stake in the litigation and hinders reform efforts by blocking any reform in a consent decree that negatively affects any provision in the CBA. Union leaders do not see constitutional, lawful policing as their goal: the leaders believe their goal is to protect the interests of their members.

For example, in Cleveland, the CBA called for destruction of officer disciplinary records in as little as six months for minor infractions and up to six years for serious incidents. In 2015, a consent decree entered into between the DOJ and the city of Cleveland called for the city to “negotiate with the union” to have disciplinary records to be kept for 10 years. This provision still has not come to fruition because of union opposition.

What this means is the federal government is constrained by police unions when trying to initiate reforms to correct unconstitutional practices and procedures. Ayesha Bell Hardaway of Case Western University School of Law examined the 26 consent decrees negotiated by the federal government via § 12601 since 1997. In only two of them is there any language indicating a DOJ stance that the terms of the decree took precedence over a conflicting CBA. The majority required the governing agency to work with the union to try to implement the decree.

A recurring problem caused by unions and the CBA is the practice of destroying disciplinary files after a few months or years. Lack of these records hinders the DOJ’s ability to investigate and uncover longstanding patterns and practices of misconduct. And it is small wonder that unions strenuously resist any effort to reform this practice.

Insignificant but necessary changes spark vigorous opposition. Before the consent decree, the Cleveland CBA required that citizen complaints against officers had to be in the complainant’s own handwriting with his or her signature. If the complainant was illiterate, it could be audio recorded. The consent decree of 2015 provided that the city would work with the union to revise the CBA to allow for electronic and telephonic complaints in addition to third-party and anonymous complaints. Union President Detective Steve Loomis voiced great dissatisfaction with the change and vowed to fight all terms of the decree that violated the union contract.

Unions strenuously resist efforts to make police departments more transparent. In “Let the Sunshine In: Illuminating the Powerful Role Police Unions Play in Shielding Officer Misconduct,” Katherine J. Bies of the Stanford Law School writes: “[C]ourts, activists, and scholars have offered two main arguments for why the public benefits from access to officer disciplinary files. First, the public has an interest in accountable and transparent decision-making by government officials. Second, providing public access to personnel files not only promotes public confidence in the ability of the police to police themselves but also builds greater trust and mutual respect between the officers and the community they have sworn to serve.”

Yet police unions vigorously fight to keep officer disciplinary records hidden from public eyes. As discussed above, LEOBR and CBA call for the destruction of disciplinary files after short periods of time. But unions have not stopped there.

In 1968, the California state legislature passed the California Public Records Act (“CPRA”) on the premise that the ability to access information about state officials was a “fundamental and necessary right of every person in [California].” In 1974, the California Supreme Court recognized that a criminal defendant has a right to discover the contents of police officers’ personnel files. The defendant in Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), was charged with battery of a police officer. Arguing self-defense, the defendant requested discovery of the officer’s file to demonstrate prior use of excessive force. The Court reasoned that the defendant was “entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.”

In response to the Court’s decision, the Los Angeles Police Department (“LAPD”) shredded over four tons of police misconduct files to prevent defense attorneys and the public from gaining access to them. The scandal then prompted lower courts to dismiss charges because the prosecution and the LAPD had destroyed the records.

The police unions, in turn, pushed for the passage of SB 1436 (a.k.a. “Pitchess Law”). The purpose of SB 1436 was to make police officer personnel records confidential. Records may be obtained only by filing a “Pitchess motion.” The motion requires a specific showing that the records hold evidence of the officer’s dishonesty, theft, moral turpitude, or prior use of excessive force. If the showing is made, a judge examines the records to determine if any information will be released. If any information is released, the party who sought it cannot share it with anyone –including the public, the press, or even another party to the legal action.

California Attorney General Evelle Younger wrote to Governor Edmund Brown, “It [SB 1436] has the unanimous support of every major law enforcement association in California, and represents a substantial step forward in protecting the rights of law enforcement officers in this state.”

The California Highway Patrol Department argued: “Peace officers should be afforded the same rights to privacy as are private citizens. The recent proliferation of overzealous [criminal defense] attorneys attempting to dig into officers’ personnel records on the chance of finding some incident that can turn the heads of jury members, has established the need for this legislation.”

One police chief wrote: “The enactment of SB 1436 will solve many of the problems arising out of the ... [Pitchess decision] by prohibiting discovery of unfounded, anonymous, or outdated citizen complaints against peace officers. Such complaints could hardly be considered relevant to an issue at trial, yet the courts have been allowing discovery of such records. Even more distressing, the courts have been routinely dismissing cases involving offenses against a peace officer if the records sought are no longer in existence.” Isn’t it ironic that the chief would complain about the dismissals due to missing records when it was the LAPD that destroyed the records, forcing the courts to dismiss cases?

With the support of every major police union in California, it is no wonder SB 1436 passed unanimously in both houses of the state legislature in 1978. A parallel example is what happened in New York with the passage of section 50-a of New York Civil Rights Law.

In 1973, New York passed its Freedom of Information Law (“FOIL”). In People v. Sumpter, 347 N.Y.S.2d 670 (1973), the defendant was charged in a narcotics case. The defense subpoenaed the NYPD, seeking the “personnel records” of two officers. Since the evidence against the defendant would largely consist of the involved officers’ testimony, the Court ruled that the prosecutor must make available to the Court “any information in its possession or in the Police Department’s possession which might go to the issue of the defendant’s guilt, including evidence affecting the credibility of such officer.”

The unions immediately went on the offensive, culminating in the passage of § 50-a, which made all “personnel files ... confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer ... except as may be mandated by lawful court order.” As with SB 1436 above, § 50-a prohibits the public and the press from accessing the disciplinary files or personnel records of police officers. The records can be accessed for purposes of legal proceedings. But this requires meandering through a series of procedural steps, and even then, the records are provided only to a judge who then makes available from the records only those portions believed relevant to the judicial proceeding.

In Copley Press, Inc. v. Superior Court, 141 P.3d 288 (Cal. 2006), the California Supreme Court extended the protections of SB 1436 to apply to records of an officer’s administrative appeal of sustained misconduct charges even when those records are maintained by someone other than the officer’s employer. In response to the Copley Press decision, activists sought the passage of SB 1019 – “sunshine legislation” that would allow local governments to publicly disclose police disciplinary records. Union opposition to SB 1019 was fierce, and in 2006, the bill died in committee. In 2007, it passed in the Senate, but owing to union opposition, it died in the Assembly committee. SB 1286 – another “sunshine bill” – died in committee in May 2016, again due to union opposition.

Police unions, many of which have multimillion-dollar budgets, oppose reform efforts that would hold officers accountable and make internal disciplinary procedures open to the public. Through political action committees to distribute campaign funds supporting sympathetic political candidates, elaborate computer systems to track bills in state legislatures, and hiring of professional lobbyists, police unions have developed well-organized political opposition to reforms. Additionally, police unions have used tactics such as organized strikes or “blue flu” epidemics, work slowdowns, and ticket-writing campaigns to force politicians to bend to their demands. Even though accountability and transparency are in the public interest, police unions argue that such measures are against the public good. For example, they claim making disciplinary records public will keep citizens from filing complaints due to fear of exposure. The unions also argue that exposure risks officer safety by exposing information to criminals. And they even argue that making the records public will subject the officer to embarrassment, causing the officer to perform deficiently.

Signs of Hope

Finally, California passed SB 1421 that became effective on January 1, 2019. The law allows any member of the public to request, via the CPRA, law enforcement and prison guard records regarding officer-involved shootings, use of force leading to death or great bodily injury, and sustained complaints of sexual assault and dishonesty in reporting, investigating, or prosecuting a crime. And in June 2020, the Illinois Supreme Court ruled that the city of Chicago may not destroy records of misconduct that are more than five years old, despite a CBA provision that requires city officials to do so.

Activists are pushing to have police disciplinary procedures removed from collective bargaining. The Interim Report from the President’s Task Force on 21st Century Policing recommends drafting and implementing those procedures with the involvement of police management, rank-and-file officers, and the community.

Law Professor Deborah Ramirez of Northeastern University in Boston recently authored a paper arguing for mandatory liability insurance for police officers. She posits that the city could initially buy the policies. But officers whose misconduct made them a higher risk would see their premiums increase just as drivers whose reckless conduct causes their rates to rise. If the officer cannot afford the increased premiums, he cannot work as an officer.

Additional suggestions for reform include attempts to persuade unions that holding officers accountable and allowing transparency are not against the best interest of the rank-and-file. Discipline, including the removal of dangerous, unfit officers, serves to increase public trust and cooperation with officers. Surely all can agree – even police unions – that officers who engage in police brutality, abusive behavior, and official misconduct must be held accountable. 

 

Sources: reuters.com; Katherine J. Bies, Let the Sunshine in: Illuminating the Powerful Role Police Unions Play in Shielding Officer Misconduct; Stephen Rushin, Police Union Contracts; Samuel Walker, Impediments to Accountability; Ayesha Bell Hardaway, Time is not on Our Side: Why Specious Claims of Collective Bargaining Rights Should not be Allowed to Delay Police Reform Efforts; Aziz Z. Huq & Richard H. McAdams, Litigating the Blue Wall of Silence, How to Challenge the Privilege to Delay Investigation; checkthepolice.org; baltimoresun.com; Catherine Fisk & L. Song Richardson, Police Unions; washingtonpost.com; npr.org; abajournal.com; theatlantic.com; nytimes.com; DaigleLawGroup.com; capitolnewsillinois.com.

 

 

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