This piece is written by Nick M., a recent high school graduate from Michigan.
Police Labor Laws
Derek Chauvin, the now-fired Minneapolis police officer responsible for killing George Floyd, could get his job back. In Minnesota, public servants reserve the right to appeal discipline with arbitration and police officers accused of misconduct often receive diluted or minimal punishment after arbitration1. Arbitrators must issue punishments consistent with precedent, meaning histories of laissez-faire enforcement frustrate contemporary police reform. Furthermore, according to the collective bargaining agreement for Minneapolis police officers,2 arbitrators cannot use an officer’s history of misconduct in disciplinary action, rendering Chauvin’s 18 previous complaints moot3. The St. Paul Pioneer Press found Minnesota arbitrators reinstate police officers 46 percent of the time, about on par with other civil servants. Due to previous lax rulings, an officer that kicked a suspect being bitten by a police dog received a 30-day suspension, while a corrections officer that ate a snack cake in the process of refilling a vending machine faced termination4. The reasons for the counterintuitive distribution of punishment stems from the byzantine collection of labor laws that protect police officers.
Civil Service Protections
Police officers receive certain rights guaranteed to all public employees under state civil service laws, often explicitly designed to promulgate meritocracy.5 In most states, civil service laws enshrine the right to collectively bargain and appeal disciplinary decisions via arbitration. Arbitration falls out of the realm of judicial review, with the Supreme Court asserting in a 1960 ruling “[arbitrators] can be wrong on the facts on the law and a court will not overturn the arbitrator’s decisions.”6
Law Enforcement Officer Bill of Rights
About 37 percent of all municipal police officers work in the sixteen states with Law Enforcement Officer Bills of Rights (LOEBRs). Enabled by the 1967 Supreme Court ruling Garrity v. New Jersey, LOEBRs seek to protect the due process of police officers. In effect, LOEBRs make police officers a protected class with stronger protections than any other public employee.7 Many contain provisions that preclude accountability of police officers.8 For example, Maryland’s LEOBR bans civilian oversight and Illinois’s bill bans the investigation of anonymous complaints.
Police unions, like any labor union, lobby vigorously to bolster protections for members, playing a crucial role in the passage of LOEBRs among other legislation. Unions negotiate with municipalities on a wide variety of topics ranging from promotion and demotion standards to vacation pay, codifying negotiated agreements in collective bargaining agreements.9 However, collective bargaining agreements often insulate police officers from accountability. In particular, financially precarious municipalities often cede control over disciplinary proceedings to officers in exchange for concessions on compensation.10 Nevertheless, labor courts consistently find disciplinary procedures eligible for negotiation under collective bargaining agreements and state labor laws that permit the negotiation of “wages and terms of employment.”11
Unions should still play a role in determining the wages and workplace conditions of officers. Yet the high social cost associated with police misconduct demands the exclusion of disciplinary procedures from collective bargaining agreements. Professor Steven Rushin of Loyola University Chicago analyzed contracts for the 178 police union contracts found seven common terms in collective bargaining agreements that eroded police accountability:
- Delays before the interrogation of officers suspected of misconduct, allowing officers to collude
- Allowing misconduct suspects to view investigative files or witness statements before disciplinary hearings
- Destruction of disciplinary records, or curtailing the utility of the records in future events of misconduct, as in Minneapolis
- Preventing supervisors from investigating or punishing officers for anonymous complaints
- Bans on civilian oversight
- Guaranteeing arbitration in the event of termination or discipline
Professor Rushin found at least one problematic clause in 156 of 178 contracts, imbuing the pervasiveness of disciplinary impediments. Yet possible reform measures could make it easier to discipline dangerous and bigoted officers like Derek Chauvin:
- Reforming the process of collective bargaining by allowing the public to view the contract before ratification, streaming negotiations, or including citizens in negotiations
- Preventing negotiations from discussing disciplinary practices, which an impetus for police unions to root out sub-par officers.
Unfortunately easing barriers to the removal of officers like Chauvin requires significant political and financial will. All other public employees with the right to collectively bargain can negotiate disciplinary processes. However, the discretion afforded police officers in the enforcement of laws and the possession of a firearm provide compelling reasons to make an exception for police officers. No other public official discharges weapons or determines the amount of force necessary for deterring law-breakers. Furthermore, reform efforts often face immense political pressure from unions and allied politicians, not to mention the threat of “de-policing,” where officers withdraw from a certain area and allow criminals to reign unchecked.12
Nevertheless, the recent outpouring of support for eliminating racial bias ossified into the police system suggest the political will exists. Policymakers and leaders should not overlook the chance to centuries of systematic injustice, even if it infuriates politically powerful police officers.
1 Dewan, Shalia and Kovaleski, Serge. “Thousand of Complaints Do Little to Change Police Ways.” The New York Times. 04 June 2020. Accessed from: https://www.nytimes.com/2020/05/30/us/derek-chauvin-george-floyd.html?auth=login-email&login=email
2 City of Minneapolis, (2018) Labor Agreement Between The City Of Minneapolis And The Police Officers’ Federation Of Minneapolis. Accessed from: https://www.minneapolisparks.org/_asset/8mhk3p/labor_agreement_park_police.pdf.
3 Andone, Dakin; Silverman, Hollie; and Alonso, Melissa. “The Minneapolis police officer who knelt on George Floyd’s neck had 18 previous complaints against him, police department says.” CNN. 29 May 2020. Accessed at: https://www.cnn.com/2020/05/28/us/minneapolis-officer-complaints-george-floyd/index.html.
4 Gottfried, Mara. “How often do arbitrators reinstate fired cops? Just under half the time.” St. Paul Pioneer Press. 23 June 2019. Accessed from: https://www.twincities.com/2019/06/23/how-often-do-arbitrators-reinstate-fired-cops-just-under-half-the-time/.
5 Rushin, Stephen. “Police Union Contracts.” Duke Law Journal. 66(6). Accessed from: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3890&context=dlj.
6 Steelworkers v. Entertainment Wheel & Car Corporation. 363 U.S. 593. 1960. Accessed from: https://www.law.cornell.edu/supremecourt/text/363/593.
7 Keenan, Kevin and Walker, Samuel. “An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights.” Public Interest Law Journal. 14B. 2005. Accessed from: https://samuelwalker.net/wp-content/uploads/2010/06/POBillsofRights.pdf.
8 Rushin, supra note 3
10 Chase, John and Heinzmann, David. “Cops traded away pay for protection in police contracts.” Chicago Tribune. 20 May 2016. Accessed from: https://www.chicagotribune.com/news/breaking/ct-chicago-police-contracts-fop-20160520-story.html.
11 Rushin, supra note 3.
12 Scheiber, Noam; Stockman, Farah; and Goodman, David. “How Police Unions Became Such Powerful Opponents to Reform Efforts.” The New York Times. 06 Jun 2020. Accessed from: https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html.