Editor’s Note: Kristen Clarke (@KristenClarkeJD) is president and executive director of the Lawyers’ Committee for Civil Rights Under Law. The views expressed in this commentary belong to the author. View more opinion at CNN.
As protests against police brutality and racism continue to gain momentum, some of the most pugnacious voices against reform have emerged from the leaders of police unions themselves.
Just last week, Mike O’Meara, the president of the New York Police Benevolent Association, demanded that elected officials, protesters and the media “stop treating us like animals and thugs, and start treating us with some respect.” In Minnesota, the Police Officers Federation of Minneapolis union President Lt. Bob Kroll referred to the protests as a “terrorist movement” in a letter he sent to union members earlier this month.
Even President Donald Trump, speaking in the Rose Garden before signing an executive order mandating modest reforms, underscored whose side he is on: “Without police, there is chaos.”
We cannot have police reform in America without police accountability – and police unions too often stand in the way of either of those goals. The organization I lead, the Lawyers’ Committee for Civil Rights Under Law, is fighting for greater accountability and reform of union contracts, and we presented written testimony to the Senate Judiciary Committee this week as it takes up police reform.
For too long, powerful police unions have prioritized officers’ job security above all other interests. While many rightfully support the labor movement, especially in low-income job sectors that are rife with racial and gender discrimination, more Americans need to recognize that police officers are not like other workers. They embody the state’s power to arrest, jail and even kill civilians. We must hold police to a higher standard. Instead, we have almost no consistent standards at all, thanks in large part to the political power of police unions.
Many police unions have crippled the ability of police departments, local governments and the public to investigate and discipline officers who engage in misconduct. Too often, police contracts are loaded with requirements that shield officers from discipline and make true justice impossible.
Some police union contracts even block misconduct investigations before they can begin or require that an investigation into misconduct be completed by some arbitrary date, otherwise the complaint is declared moot. The Omaha police union’s contract for example, prohibits any disciplinary action (except for criminal investigations) unless the discipline is imposed within 100 days of the incident itself.
But what may be deemed too long in the eyes of a contract may be nowhere near long enough for a civilian to muster the courage to file a formal complaint, let alone the time needed to investigate it. And, of course, if a complaint is filed after the time period stipulated in the contract, the investigation process cannot even start.
Even when an investigation does start, contracts often trigger delay mechanisms that give officers information and time, which officers can use to coordinate a story that explains away the incident. Research shows that some contracts guarantee officers that they will not be questioned about potential misconduct for up to several days after the incident, in some cases even when there is a deadline by which an entire investigation of the incident must be concluded.
According to Check the Police, a project of the criminal justice reform group Campaign Zero that has collected and reviewed dozens of police union contracts from major American cities, officers accused of misconduct are given a summary of the allegations against them in contracts from about half of the 81 cities reviewed in 2016 (and sometimes are given all of the evidence collected against them) before they put a statement on the record.
These delay mechanisms matter. If interviewed immediately, officers cannot join together to get their stories straight. If interviewed immediately, officers cannot explain away evidence they might not know about, such as video footage showing their misconduct. Together, these delay mechanisms give officers a significant time and information advantage that corrupts the investigatory process and undermines accountability and oversight.
Even in the rare event that an officer is disciplined or terminated from the force, these contracts often require arbitration (common in the public labor sector) which can lead to reverse disciplinary decisions and reinstatement of a fired employee. Moreover, these arbitrators are usually far from impartial. More than half of union contracts studied in one analysis give either officers or the union substantial power in selecting that arbitrator.
It should not be a surprise, then, that a number of officers who are fired ultimately get that decision overturned and go back onto the force. In Philadelphia, for instance, according to academic analysis of a Washington Post study of officers terminated and rehired between 2006 and 2017, more than 60% of terminated officers were put back on the job.
In the rare case in which an officer is successfully sued civilly for conduct on the job, that officer is unlikely to be the one paying the bill. It’s common for these union contracts to indemnify officers from most civil judgments, which means that the city pays the bill for the rare civil lawsuit that holds an officer liable.
Legal research of 44 jurisdictions between 2006 and 2011 affirms that offending officers almost never have to pay the judgments against them. These contract provisions provide immunity from some civil judgments, providing no financial incentive to police officers to conform their conduct to the law.
These aren’t one-off quirks of individual police contracts. Nearly all of these barriers to accountability are commonly found in union contracts. Research conducted by Check the Police in 2016 shows that 89% of the contracts in the 81 cities reviewed imposed at least one major barrier to accountability and 78% imposed three or more such barriers.
Police unions obstruct accountability in other ways, as well. The Philadelphia police union, for example, sued District Attorney Larry Krasner for collecting and implementing a “do not call” list of officers who have allegedly engaged in misconduct, meant to keep them from testifying in criminal cases. Their suit was not successful. A union representing the San Bernardino County Sherriff’s Department also filed a lawsuit to block a state law that made some records of misconduct open to public inspection, saying it should only apply to records created after Jan. 1, 2019 – when the law took effect – and not retroactively. The California Supreme Court denied the union’s petition.
For all of these reasons, Minneapolis Police Chief Medaria Arradondo’s announcement this he is withdrawing from contract negotiations with the force’s police union signaled potential change on the horizon. Arradondo said he seeks to enlist experts to help re-imagine a contract that can provide transparency, accountability and possibility for policy reforms.
In the wake of the tragic killings of George Floyd and Breonna Taylor, our country has reached a critical moment for policing reform. We will never achieve racial equity and equal justice in this country until we can ensure that police officers are held accountable.
The misconduct and crimes of law enforcement officers — which police union contracts make harder to investigate and prosecute—are destructive to our society, to the rule of law, and to the sustainability of our democracy.
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When police cannot be held accountable; when they are effectively immunized from the very laws that they are entrusted to enforce; when they beat and kill the people they are supposed to protect, and can do so without accountability, there can be no justice.
Mayors and chiefs of police should follow the lead of Chief Arradondo and aim to only agree to union contracts that hold police accountable to the people.