Police Unions Under Fire

Relations between the community and the police are at an all time low. This observer says police unions have a serious role to play to solve the problem.

Ed. Note: This recent opinion piece written by Jonathan M. Smith and published in the New York Times is getting a lot of attention. You may have already read it, but for those of you who haven’t, I thought you would want to read it. If you have comments, please go to the PubSecAlliance Facebook page and leave them there. – Cynthia Brown

Police Unions Must Not Block Reform

WASHINGTON — The decline of public trust in the police we’ve seen after a string of incidents in Ferguson, Mo., Cleveland, New York and Baltimore has many causes. Policies like hot-spot policing and stop-and-frisk searches—outgrowths of the “broken windows” law enforcement strategy—have put enormous pressures on minority and low-income communities. But the role played by police unions in shielding their members from accountability for excessive force has also contributed to the erosion of trust.

Police officers have the authority to use force, including deadly force, though that authority is not unlimited and must be exercised within the bounds of the Constitution. But that authority must be effectively monitored and corrective steps need to be taken when the boundary is crossed.

From 2010 until earlier this year, I served as chief of the special litigation section in the Department of Justice’s Civil Rights Division. During my tenure, we investigated more than 20 police departments. In most cases, we were evaluating whether there had been a pattern of excessive force. The agreement announced this week, which imposes important limits on the use of force by police officers in Cleveland, powerfully illustrates the value of the division’s work.

In many instances, we found that force was much more likely to be used against African-Americans than against whites. We often also saw that police departments’ systems of accountability to address misconduct were inadequate.

These problems were caused, in part, by the police unions’ response to the reforms of the 1960s. In 1967, President Lyndon B. Johnson appointed the Kerner Commission to investigate the causes of the riots that were rocking inner-city areas across America. Its report identified African-American communities’ long-running grievances with police as a key trigger of unrest.

Following the report, police conduct was challenged by civil rights litigation, and a movement for civilian oversight was born. A series of decisions from the Supreme Court defined the constitutional right of protection from excessive force for citizens arrested by police.

The Fraternal Order of Police and other rank-and-file police groups adopted a defensive strategy toward this pressure. They lobbied state legislatures to enact law enforcement “bills of rights” that placed strict limits on accountability.

In big cities, where police unions have political clout, rigid union contracts also restricted the ability of police chiefs and civilian oversight bodies to tackle misconduct. As a result, an officer involved in a shooting often cannot be interviewed at the scene; internal affairs investigators have to wait days to get a statement.

Many police departments allow officers to collaborate on a use-of-force report and permit officers to view bodycam recordings before writing a report to “get the story straight.” We found that senior officers rarely questioned a use-of-force report, even if it was incomplete or inconsistent, or used boilerplate language.

The ability of police departments to review civilian complaints may also be proscribed by union rules. In Portland, Ore., a 2012 Justice Department investigation revealed a process in which two-thirds of complaints were dismissed without inquiry. Those that did get investigated were subject to a six-tier review process that took more than a year to complete. Very few complaints were ever resolved.

The union protections also hamper departments’ ability to audit police conduct. This is critical when officers are involved in shootings. In many cities, we found that relatively few officers were responsible for a majority of use-of-force incidents. Yet cities rarely track the data or look for patterns of misconduct.

There can, of course, be legitimate reasons for a disparity: An officer on a warrant squad, for example, will use force more often than an officer with a quiet neighborhood beat. But internal investigations of deadly force could be so ponderous that in Miami, for example, we found two cases in which an officer was involved in a second fatal shooting before the department had determined whether the first was justified.

I met hundreds of officers in my work. The vast majority are honorable public servants, and many see the need for fundamental change.

Union-negotiated rules are only one barrier to change—and police chiefs sometimes cite union contracts unfairly, as an excuse for inaction. But state laws and collective bargaining agreements must be reformed. Disciplinary procedures should be less complex and rules that limit the effectiveness of civilian oversight must be eliminated. Transparency in police conduct must be the rule.

Reform is good for union members—in fact, the overreach of law enforcement bills of rights and some union contracts have harmed the very officers the contract rules are intended to protect. The obstacles to correcting police misconduct have not only undermined confidence in the police, especially among minorities, but have actually placed officers at greater risk by damaging relations between police departments and communities.

The job of restoring community trust in cities like Cleveland demands sustained effort both by political and police leaders and by regular police officers. The police unions must play their part.

Jonathan M. Smith, an associate dean of the law school at the University of the District of Columbia, was a senior litigator in the civil rights division of the Department of Justice.