How Police Union Contracts Incentivize Police Misconduct and Crime
By: Brandon Ray Langston
Tags: Police, Police Brutality, Politics, Race, Criminal Justice

(Source: Irfan Khan/Los Angeles Times.)

Police Union contracts and state level police bills of rights are imperative to what has been termed “an alternate justice system” by Campaign Zero in their 2016 report Police Union Contracts and Police bill of Rights Analysis, an analysis of police union contracts of 81 of the 100 largest American cities, and the police bill of rights in the 16 states where they exist. Labor unions exist to protect the rights of workers but no other labor organization is given permission to coerce civilian behavior or end lives. The problem in police union contracts is that they often have provisions meant to protect officers who abuse this authority, endangering the citizens that the police department exists to protect. To quote from that above-mentioned report,

“Collective bargaining agreements (i.e. contracts) are simply meant to allow due process: employees negotiate with an employer over matters of working conditions, compensation, benefits, and performance management as a group, thus increasing the employee’s collective bargaining power. These agreements are meant to ensure that workers are treated fairly, with dignity and respect. They are not meant to deny other citizens fairness, dignity and respect.”

Criminal activity and misconduct among police officers is necessarily encouraged by the provisions in police union contracts and police bills of rights that prohibit those officers from being held accountable. Campaign Zero’s analyses of police union contracts in 81 of the 100 largest American cities identified six such provisions: (1) Disqualifying complaints, (2) preventing officers from being interrogated immediately after an incident, (3) providing police with information not afforded to civilians prior to interrogation, (4) limiting consequences for officers and limiting power of civilian oversight, (5) requiring legal and settlement costs of investigations into police misconduct to be paid for by the city rather than the officer or police department, and (6) purging records of past misconduct.

Campaign Zero’s report states that,

“Of the 81 cities’ contracts we reviewed, 72 included at least one of these barriers to police accountability. 13 of the 14 states with police bills of rights also included one of these types of policy provisions. 63 cities and 12 states have three or more provisions imposing barriers to accountability. Only Aurora, Boston, Chula Vista, Dallas, Denver, Fremont, Fresno, Long Beach, and Nashville did not contain problematic provisions in their police union contracts.”

These popular provisions are present in most of America’s large cities, explaining why only 0.2% of the 4,024 killings by police between 2013 and 2016 led to convictions against those officers. In the following pages I will explain what each of these provisions are, citing examples from specific contracts in order to present Campaign Zero’s findings to a wider audience.

Over 30% of the 81 cities surveyed have provisions to disqualify complaints for reasons unrelated to whether those complaints are valid and substantiated. During a presentation on best practices and police union contracts given to the City Council of Portland, Oregon Samuel Sinyangwe and DeRay Mckesson of Campaign Zero offered another example. The California Police Bill of Rights prohibits disciplinary action against a police officer if that discipline results from an investigation that takes longer than 100 days to complete, regardless of the conclusions of that investigation. As another example, per the police union contract of Columbus, Ohio all investigations into police misconduct must be completed within a mere 56 days of when the complaint was first filed. If an investigation leads to disciplinary action, but that investigation took longer than 56 days to complete, an officer can be reinstated on that police force.

Officers who are fired or otherwise disciplined for misconduct may even appeal to an arbitrator who is legally entrusted with the power to overturn that disciplinary action. Recently, an arbiter ruled that former officer Aaron Brown of Manchester Police Department in New Hampshire, who was fired in 2018 for intentionally damaging property while executing search warrants and making racist comments. In this case the police Chief, Carlo Capano, does not want Brown back on the force and refused to implement the reinstatement, though he is legally bound to do so by their police union contract, and this minor drama is still playing out. Arbitrators are often a means of placing proverbial “bad apples” back in the orchard, which may already stink of its own decay.

Prohibiting officers from being interrogated immediately after an incident or after an investigation begins allows guilty officers to mold their story and avoid accountability. In some police departments and entire states, officers are even afforded the privilege of reviewing all evidence and materials related to an investigation being conducted into their own misconduct before they can legally be interviewed or interrogated as part of that investigation. For example, the Louisiana Police Bill of Rights requires that an officer obtain legal counsel before any interrogations can begin, and provides them up to sixty days to acquire such counsel; a legal two month delay of an investigation by the person being investigated.

The Florida Police Bill of rights privileges officers to review all evidence and materials relevant to an investigation into themselves before they can be interviewed. It states that such evidence and materials includes “The complaint, all witness statements, including all other existing 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.” These are provisions that serve only to aid criminal officers in fabricating their story close enough with the known facts to evade the law. Some contracts even allow officers breaks during interrogations and allow them to request transcripts of the interrogation after completion. These latter two privileges are not bad in themselves but, when denied to civilians, they are privileges, and place one section of the citizenry above all others.

The ability of civilians to oversee police investigations may be curtailed by police unions, even though the police need to be policed- as the saying goes- just as one government agency needs another to have powers of oversight for a system of checks and balances. Suggesting otherwise is to place an impossible amount of trust into a single organization that has long been fraternal before it is lawful. An organization that is given license to control lives as well as end them. Suggesting otherwise may not be a symptom of naiveté, but an intentional offer of criminal impunity.

The data demonstrates that police departments generally cannot be trusted to conduct objective investigations and employ just punishment against their own members. And why should they be, lest they be more than human? Still some police union contracts explicitly deny citizen oversight bodies any ability to conduct independent investigations or subpoena officers, leaving the power to conduct investigations solely with the police department. That department is already given the responsibility of investigating itself, and so hereby denies necessary checks and balances on inevitable occurrences of corruption.

An example of denying civilian oversight is seen in the police union contract for Austin, Texas. Their civilian oversight processes “shall not be used or permitted to gather evidence, contact or interview witnesses, or otherwise independently investigate a complaint of misconduct by an officer. There shall be no legal or administrative requirement, including but not limited to subpoena power.” Gutted of their ability to conduct their own investigations, civilian oversight committees are barred from overseeing police investigations at all.

The burden of legal fees and settlements in cases of police misconduct would presumably be paid for by police departments and the police officers themselves. As doctors must pay for their own malpractice insurance, it is reasonable to expect police officers would carry a similar financial burden that disincentivizes misconduct. Yet in 49% of America’s 81 largest cities, the city is responsible for paying legal fees, settlement costs, or paid leave for officers disciplined for misconduct. This further incentivizes abuse by assuring criminal members of the police force will not be financially responsible for their actions. The New York City Police Department is immune from paying legal settlements from its own funds. As a result, in 2019 New York City taxpayers lost $68,688,423 to legal settlements for police misconduct. Paying as a department and as individuals for their own misconduct is both a more effective deterrent to abuse of citizens and relieves taxpayers of a double financial burden: paying the police for a service they are not receiving as well as for the cost of their misconduct and crimes.

A lack of recording complaints and verified misconduct, and the systematic purging of existing misconduct records, is unsurprisingly associated with higher levels of police misconduct and criminal behavior. 53% of the 81 largest American cities have provisions to purge officer misconduct records. In Baton Rouge, Louisiana the records of any complaint that results in a suspension will be destroyed after five years if a similar complaint does not arise within that time period. The same policy applies to complaints that result in demotion of an officer and complaints involving sexual abuse. This is similar for instances of domestic violence, of which around 40% of police officer families experience according to Conor Friedersdorf in The Atlantic, citing the National Center For Women and Policing. At four times the national average levels of domestic abuse, policing is an occupation that effectively selects or attracts abusive individuals. Even if a crime is repeated and reported, it may not be recorded honestly. What qualifies as a “similar complaint” may not defined at all in these contracts, and actual similar complaints can be filed under different categories to allow for the eventual purging of an officer’s records.

There will always be instances where deadly force is necessary to protect officers themselves or the public from an evidently violent person, but most police killings do not occur under circumstances of clear threat to life. Nor do they occur in the active prevention or disruption of a violent crime in progress. Use of deadly force is significant but only one form in which misconduct and crime can occur. The literature demonstrates that the presence of any of the aforementioned provisions in police union contracts or bills of rights are associated with increased misconduct generally, including but not limited to the use of deadly force. Emphasizing the effect of collective bargaining on police behavior, a study titled Collective Bargaining Rights and Police Misconduct: Evidence from Florida detailed that when sheriff departments entered collective bargaining agreements (with police departments already in such agreements as control groups) reports and complaints of violent police misconduct increased by 40%. However, this is a limited case study, and more will need to be conducted to demonstrate if the findings are conclusive.

The existence of accountability requires reversing every provision that has been identified here. Police departments should be required to retain officer misconduct records indefinitely, those records can and should be used to predict which officers will likely be involved in future cases of misconduct, and those records should be consulted as an impediment if not a disqualification to an officer applying to be hired at a different police department. Without this, criminal officers may move to different cities and police departments like catholic priests being shuffled to a new parish filled with new and naive victims. Police ought to be treated like school teachers, whose records of abuse of children would not be destroyed. We expect more from those entrusted with the care of our children, just as we expect those tasked with our protection to protect us.

Citizens should be provided ample time to file complaints against officers, there needs to be systems of protections and anonymity for officers who file complaints against fellow officers, and any provisions that disqualify complaints based on the time it takes for the complaint to be filed should be struck down. Most importantly, complaints should never be disqualified because of the time taken by the police to perform their investigation. This prevents accountability for reasons that are not the fault of the complainer, regardless of whether the defendant officer is guilty.

Investigations into officers should not be delayed and officers should not be given privileges before the commencement of and during investigations which are not offered to civilians. Civilian oversight of police departments and investigations into officers is necessary to ensure fairness. They are performing a public service, and those paying for that service deserve the right to ensure the legal power vested in the police is not being used against them.

The police have been the recipients of justified anger that has at times treated all officers as unnecessary at best and murderous at worst. Of course, one officer might be cordial to one type of person but abusive to another, and even the best intentioned officers act in concert with a systemically racist and ultimately unjust system, most notably through the failed and inherently unjust War On Drugs. However, law enforcement is and always will be necessary, and the job requires a willingness to put one’s self in harm’s way. This implicit characteristic of the job does not belie the fact that it is a perfect organization to become riven with corruption and abuse, as many police departments have been and still are. It is not the mere existence of police in the abstract, but the reality of how policing exists in America that is a moral crisis. This reality engenders extreme discomfort in many who react defensively to even the most coolheaded identifications of the problems with policing in America, just as it engenders frantic fury among those who understand it but lack a fair and effective way to address it. The necessity of police accountability, to say nothing of the restructuring of the criminal justice system as a whole and other issues like qualified immunity, should not be partisan issues; this is a question of what thread we wish to use to sew the fabric of our society together.