Op-Ed: Police union contracts shield bad cops from punishment. Here’s how to rein them in

One of the appalling aspects of the George Floyd killing is its sense of deja vu.

Derek Chauvin, the Minneapolis policeman now charged for the murder of Floyd, had received at least 17 prior complaint citations. He was disciplined only once, for pulling a woman out of her car after stopping her for driving 10 mph above the speed limit.

Jason Van Dyke, who was convicted for shooting Laquan McDonald 16 times while he was walking away, in Chicago in 2014, had 20 citizen complaints, at least 10 of them for excessive force. None resulted in disciplinary action.

One reason for the persistence of misconduct is the outsized influence of police unions. Since the 1960s, state laws have increasingly allowed disciplinary procedures to be determined in collective bargaining with police unions. Courts have liberally interpreted unions’ bargaining authority. And unions have reinforced their clout by lobbying state legislatures for various statutes that impede supervisors from conducting investigations and imposing discipline.

Jacob Frey, the mayor of Minneapolis, said recently that police collective bargaining agreements and arbitration requirements have kept the city from holding officers accountable. A task force reviewing police misconduct in Chicago, where only 2% of complaints result in disciplinary action, said collective bargaining agreements “essentially turned the code of silence into official policy.�

Evidence of union influence is supported by an impressive body of academic research. A 2017 article in the Duke Law Journal by Stephen Rushin makes for chilling reading now: “The relationship between union contracts and police accountability is an issue of serious national concern warranting additional empirical examination.� Rushin studied police contracts in 178 cities and found that nine out of 10 contained one or more clauses that could thwart “legitimate disciplinary action.�

Records of misconduct are typically sealed, and in cities from Baltimore to Cleveland, union contracts permit officers to expunge evidence of past misconduct. Many contracts forbid questioning of officers accused of misconduct for anywhere from several hours to several days — allowing officers to change their recollections and, if multiple cops are involved, to coordinate stories.

Although many cities have civilian review panels, union contracts weaken their authority, for instance by prohibiting them from considering anonymous complaints. Many bargaining agreements also demand that cities indemnify officers against civil litigation, further reducing officer accountability.

Researchers have found a higher rate of police misconduct on unionized forces, which include about two-thirds of all officers. A University of Chicago Law School study found that in Florida, after county sheriffs’ deputies won the right to collective bargaining, violent incident complaints rose 40%, compared with a control group.

Collective bargaining agreements are not the unions’ only shield. Unions have lobbied states for highly problematic officers’ “bills of rights.� Delaware’s statute bars cities from compelling disclosure of personal assets (thwarting corruption inquiries). State civil service laws throw up another layer of protection.

These multiple screens create powerful disincentives to even attempt to discipline misconduct. Typically, officers found culpable by supervisors can appeal; four layers of appeals are not uncommon.

Ultimately, most appeals are resolved by an arbitrator. Arbitrators who hope to be rehired have an incentive to compromise. Moreover, collective bargaining agreements give unions significant say in choosing the arbitrator. Little wonder that arbitrators almost invariably reduce the severity of discipline. In Washington, according to a Washington Post report, 45% of dismissed officers were subsequently reinstated. In Philadelphia, the rate was 62%.

Collective bargaining agreements even restrain the federal government. When the Justice Department entered into a consent decree with Pittsburgh to compel it to enact police reforms, it was forced to state that nothing “in this Decree is intended to alter the collective bargaining agreement.�

Police union representatives frequently object to reform efforts by citing officers’ rights. They correctly point out that many accusations are unfounded, and in a politicized climate (such as now), they are likely to be targets.

Moreover, lethal police misconduct remains relatively rare. Of roughly 700,000 officers in the U.S., about 3,000 or so per year are involved in shootings, about 1,000 of them fatal. The majority of the victims were armed.

Police officers are entitled to due process. But regard for officer rights is no excuse for creating a web of procedural red tape or turning every disciplinary action into an endless adversarial struggle. It is not an excuse for gutting transparency.

Traditionally, police did not have collective bargaining rights. Partly as a response to citizen campaigns against police brutality in the 1960s, unions began to demand, and win, more protections. This dovetailed with rising public sector organization.

Police, firefighter and teacher unions now wield tremendous clout. Unlike private sector unions, they can influence elections and vote their bosses out. Their influence extends to both political parties, but particularly to Democrats. (Fear of the unions’ political muscle results in legislatures repeatedly approving unaffordable public sector pensions.)

Police unions also have a singular weapon — they can play the public safety card. In effect, they equate any police demand with the public interest. As Katherine Bies wrote in the Stanford Law & Policy Review, police unions “frame any opposition to their agenda of secrecy as endangering public safety.�

It’s easy to say that cities should stand firm against these contract provisions, but they will need support from legislatures. At a minimum, lawmakers should mandate that bargaining on wages and benefits and on disciplinary procedures be handled in separate contracts. That would make it harder for cities to trade away disciplinary control in return for constraints on wages and benefits.

Another strategy is to make collective bargaining with police unions open to the public and to welcome community groups and other stakeholders into the process. That would create political pressures to offset the pressure from unions. Public officials would not be so quick to, say, rule out anonymous civilian complaints if they knew the public was watching.

To go further, legislatures should enact laws that explicitly remove police disciplinary procedures from collective bargaining, while allowing for public participation in crafting those procedures.

Unions will fight such remedies, but given the urgent need for accountability, they may see that change is inevitable. To regain control of policing, cities have to distinguish between the private interests of police unions and the public interest.

Roger Lowenstein is the author, most recently, of “America’s Bank: The Epic Struggle to Create the Federal Reserve.�