Reforming America's Police Unions to Ensure Justice
INTRODUCTION
America’s law enforcement agencies are facing a public reckoning. In the wake of George Floyd and Breonna Taylor’s wrongful deaths at the hands of police officers, millions of Americas have taken to the streets to demand reform.
Polling shows that the American public is firmly behind police reform.¹ Maintaining public order is our government’s most basic and important role, but success in doing so depends on the public’s confidence in police. Although the large majority of police officers do a dangerous job well, and although most Americans don’t support more radical proposals to “defund the police,” they are upset about the perceived inability of police departments to hold bad officers accountable, and especially about the disproportionate impact of those bad officers on minorities and African-Americans. It is imperative that policymakers take action to restore public faith in police accountability.
Many of the problems that the public perceives to exist in police departments actually emerge from police unions, which bargain collectively on behalf of officers on many issues concerning police discipline. When an officer commits misconduct, his or her union contract usually guarantees that there are strict limits on internal investigations and otherwise tries shields officers from punishment. The Chicago Task Force on Police Reform under Mayor Rahm Emanuel stated that “The collective bargaining agreements between the police unions and the City have essentially turned the code of silence into official policy.”² As more activists have traced police protections back to police unions, a chorus of media outlets have begun to call for greater scrutiny after decades of unchecked power. Many police chiefs and commissioners have added their own voices to the chorus demanding police union reform.
We propose two main avenues of reform to limit police union powers. On the federal level, Congress should use its power of the purse to attach conditions to the federal funds that flow to local and state law enforcement agencies. Such grant conditions would demand union contracts and civil service rules that include greater transparency, accountability, and oversight. Placing these conditions on law enforcement grants would incentivize local and state lawmakers and police officials to rework their agreements with police unions in order to keep their access to federal funding for hiring, equipment, and community programing.
On the state level, lawmakers can directly reform collective bargaining agreements by police. Without ending such agreements, they can limit their control over police discipline and other staffing issues. They can also directly reform civil service rules or disciplinary procedures that are enacted in laws and regulations, and which police unions also use to prevent individual accountability. Evidence indicates that such reforms can lower crime while also reducing police abuse of civilians.
Good cops don’t want bad cops on the force. And most police chiefs and police department want to hold individual officers accountable. We can ensure public order, restore faith in police, and remove bad actors if we fight back against police unions’ overweening power over police discipline.
BACKGROUND ON POLICE UNIONS
For most of the 20th Century, the majority of American cities and states refused to recognize police unions as legitimate bargaining agents for rank-and-file officers. Famously, Massachusetts Governor and future-Republican President Calvin Coolidge deployed the Massachusetts State Guard to break the Boston Police Strike in 1919, and argued that there was “no right to strike against the public safety by anybody, anywhere, any time.” Coolidge’s efforts earned him national renown, including from Democratic President Woodrow Wilson, who described the strike as “a crime against civilization.”³
Following World War II, police officers once again tried to unionize, but their efforts were thwarted by a series of court rulings, which upheld the right of cities to ban police unions. But in the early 1960s, as part of a wave of municipal worker unionization in general, cities began to recognize police unions. In New York City, Mayor Robert Wagner recognized the Police Benevolent Association as a bargaining agent for police officers in the city in 1964, six years after recognizing other public sector unions.⁴ A number of police supporters were elected as mayors in cities such as Minneapolis and Philadelphia. By the 1970s, police officers were able to unionize in cities across America, including Boston, Detroit, Seattle, Buffalo, Milwaukee, Omaha, Oakland, Atlanta, and Los Angeles.⁵
The early years of police unions offered dolorous examples of their misuse of power. When New York cut some police salaries during the city’s dire fiscal crisis in 1975, the New York Patrolman’s Benevolent Association began handing out flyers at airports and bus stations claiming New York was “Fear City” and advising tourists not to come.⁶ When thousands of New York policemen were laid off around the same time, they blocked the Brooklyn Bridge for hours and slashed car tires, while the still uniformed police refused to intervene.⁷ Other police unions threatened “slowdowns” or stopped working, allowing city streets to descend to chaos.⁸
Over the next fifty years police unions became some of the most powerful organizations in the country. The Fraternal Order of the Police today has almost 350,000 members, making it one of the nation’s largest unions, while the National Association of Police Organizations has another 240,000.⁹ Overall, “protective service” employees, composed of police, prison guards, and firefighters, are the most heavily unionized sector of the economy, at about 33% unionized, compared to a national unionization rate of about 11%. The police in particular have an over 60% unionization rate, perhaps the highest of any group anywhere in the nation, outside of firefighters, and over 80% of all police officers are represented by collective bargaining agreements.¹⁰ Police unions today don’t just negotiate with state and local governments, they have the ability to influence state and local legislators and elect their own managers. Any discussion of police reform therefore has to face the power of police unions.¹¹
HOW UNIONS STYMIE ACCOUNTABILITY AND REFORM
In the early years of police unionization, the primary motivations were better pay and working conditions. The nascent police unions opposed reform measures in only a handful of occurrences. State and local opposition to police unionization was primarily pecuniary. More recently, police unions’ largest victories have been in winning disciplinary protections for officers.
Today, most states allow police unions to not just negotiate over “wages and benefits” but also over the “terms and conditions of employment,” which include things like staffing, shifts, and disciplinary procedures. While other terms and conditions agreements can impinge on good policing practice, bargaining over discipline is perhaps the most dangerous in terms of preventing police abuse.
In a 2017 Duke Law Journal article, Professor Stephen Rushin surveyed 178 police collective bargaining agreements for clauses affecting discipline. He found that these agreements usually contains some or all of the following clauses: prohibiting internal investigations of anonymous civilian complaints; allowing officers to request deletion of formal complaints and disciplinary histories after a few years, or to automatically remove them; limiting the internal complaint period to a short period of time after an incident of alleged brutality or misconduct; limiting Open Records Act requests of officers’ disciplinary files; barring public access to police body-camera footage without a court order; barring internal investigators from searching officers’ lockers or using polygraphs when interrogating officers; delaying interrogations of officers suspected of misconduct; limiting the lengths of internal investigations and civilian oversight of investigations; and requiring municipalities to indemnify officers in cases of civil judgements.¹²
All of these clauses should be matters of grave public concern. Although some police officers complain about simple procedural rules such as Miranda warnings for criminal suspects, when investigating their own, unions have guaranteed a litany of procedural protections that would make Ernesto Miranda’s heads spin, and which go far beyond the dictates of due process or common sense.
Unions negotiate these clauses because they translate into real protections for officers facing investigations. As Professor Rushin explains:
Excessively delaying interrogations of officers after alleged misconduct allows officers to coordinate stories in a way that deflects responsibility for wrongful behavior. The destruction of disciplinary records makes it more difficult for supervisors to identify officers engaged in a pattern of misconduct. The disqualification of entire classes of civilian complaints prevents supervisors from even investigating potentially abusive behavior. Limitations on civilian oversight and arbitration clauses rob the public of the opportunity to monitor police behavior.¹³
One of the most damaging types of clauses in these agreements allows any removed officer to request binding arbitration, with some of the arbitrators chosen by the police union itself. A recent Washington Post study of the largest police departments showed that police arbitration in particular guaranteed that almost 25% of all removed officers were later reinstated on the force, some after being fired multiple times.¹⁴
All of these clauses are dangerous because they prevent the removal of bad cops, and most studies show that a small number of bad cops cause most of the problems with police abuse. One study found that just 5% of officers in the Chicago Police Department garnered a third of all citizen complaints.¹⁵ In other cities the ratios were even higher. A National Institute of Justice Report stated that, “It has become a truism among police chiefs that 10 percent of their officers cause 90 percent of the problems.”¹⁶ Even the handful of the worst officers, those convicted of crimes, are difficult to remove from the force. In a 2017 review, the Minnesota Star Tribune found that more than 500 current or formerly licensed police officers had been convicted of at least one crime since 1995, yet three-quarters of those officers were never even disciplined by their departments. Such results help explain the anger at the George Floyd murder in Minneapolis.¹⁷
Research into the effect of police unions on abuse is preliminary but indicate that increased police union protections does increase abuse. A study of a Florida ruling which allowed sheriff officers to unionize found a 40% increase in citizen complaint in counties that began collective bargaining. A recent study of 100 police departments by Abdul Rad shows that police unionization was associated with statistically significant increases in the killing of unarmed civilians. He also found that that the contract provisions that seemed to increased killings the most were formal waiting periods for investigations, restrictions on internal investigators, and unfair access of the accused to investigative material before making statements.¹⁸ A recent, preliminary survey of police unionization in the 1960s and ‘70s found unionized states and cities had significant increases in police shootings, especially against minorities and African-Americans.¹⁹ Just a raw look at the Bureau of Justice Statistics numbers also shows that unionized departments tend have to more per-capita citizen complaints, but about half the rate of disciplined officers.²⁰
THE SOURCE OF POLICE UNION POWER
Public sector unions today are a powerful force and make up almost half of all union members. But police unions have some peculiar powers and protections. One reason is that these unions often garner support from both sides of the political aisle: from those on the left, who support public unionization, and from those the right, who support police and public order. Police also have particular powers in negotiating that other unions lack. A recent “playbook” by a police union law firm showed that some police unions use tactics like slowdowns or the “blue flu” to get municipalities to the negotiating table.²¹ Other police unions have hired private investigators to stalk city council members, or used their police powers to harass politicians with frivolous charges and interrogations.²²
Police unions have thus achieved some particular negotiating benefits not granted to other public sector unions. For instance, some states, such as Texas, Georgia, and Wisconsin, ban public sector bargaining in general, but specifically carve out exceptions for police bargaining.²³
Due to the dangerous strikes and job actions of police and firefighter unions in the 1960s, many states granted these two groups, and only these two groups, “compulsory interest arbitration.” Unlike individual arbitration, compulsory arbitration means that whenever the government and the police unions refuse to agree to terms to a new collective bargaining agreement, the negotiation automatically goes to an arbitrator. That arbitrator, partially picked by the police unions themselves, then has power to decide on points of disagreement on wages, benefits, and terms and conditions of employment. Decades of research shows that such contract arbitrators have tended to give police unions to particular benefits, including on disciplinary procedures, that other public sector unions cannot achieve.²⁴
Even in those states where police unions are not allowed to negotiate over disciplinary procedures, or where their negotiations are limited, they can use their heft inside state legislatures and city councils to enact civil service rules that prevent accountability. Many states, such as Maine, require several steps and appeals before any public official can be removed.²⁵ Other cities, such as Cincinnati, show complicated police removal regulations outside of the collective bargaining agreements.²⁶
At the behest of police unions, fourteen states have also passed “Law Enforcement Officers Bills of Rights” to give police officers special protections against removal, including many included in collective bargaining agreements.²⁷ Besides being an obvious contradiction in terms, since bills of rights are enacted to protect the public from government, not the other way around, they have also prevented individual accountability. Their extension to correctional officers has also caused several scandals in the Baltimore and New York prison systems.²⁸
In other states, police unions passed laws to make police disciplinary records private.²⁹ In California, the law ensures that not only internal police records, but the records of any appeal to higher agencies such as the Civil Service Commission, remain private as well.³⁰ These laws prevent the public from getting data on police departments in general, and on discovering which bad officers are causing the most harm to the public.³¹
Beyond the collective bargaining agreements and laws concerning police discipline, there are other unfortunate effects of police unions on public safety. Collective bargaining terms on simple issues such as staffing, shifts, and patrol often prevent deploying officers at needed places and times, or in creating new community-oriented policing strategies.³²
More broadly, the police unions’ ability to garner sometimes excessive pay and benefits for their members limits the resources available for public safety. This itself tends to cause more abuse because underfunded and undermanned police departments tend to be more likely to use deadly force relative to those that have sufficient manpower.³³ More generally, underfunded police pension and benefit systems, which at 71% funding, tend to be lower even than public pensions in general, at 74%, pose a grave threat to the future solvency of states and municipalities, which is presents yet another threat to public safety.³⁴ The recent Janus ruling by the U.S. Supreme Court gives local governments increased flexibility in negotiating with unions and in allowing dissatisfied union members to leave, but state and local governments taken full advantage of this opportunity.
But for the purpose of preventing excessive force and bad behavior, dismantling unfair protections against officer discipline is the best way to improve police departments. It can help ensure transparency, accountability, and overall public safety. There are both federal and state avenues for reform.
PROPOSAL: ADD CONDITIONS TO THE BUREAU OF JUSTICE ASSISTANCE’S POLICING GRANTS
We propose that Congress add specific conditions to the Bureau of Justice Assistance’s competitive grant programs in order to incentivize local, state, tribal, and territorial law enforcement agencies to excise clauses from collective bargaining agreements and civil service rules that unduly limit internal investigations, obscure patterns of misconduct, shield officers from discipline, and otherwise work against the public interest and safety of our communities.³⁵
Each year, the Bureau of Justice Assistance (BJA) awards hundreds of millions of dollars in competitive grants to local, state, tribal, and territorial law enforcement agencies. These awards help these jurisdictions hire and train new officers, procure cutting-edge technology, and implement community outreach and educational programs.
Since its enactment in 1994, Community Oriented Policing Services (COPS) has allocated billions of dollars in federal support to nearly 13,000 jurisdictions through 27 grant programs. COPS has provided funding to hire more than 133,000 community policing officers. In 2020, 596 jurisdictions received a total of $394 million to hire 2732 officers for 36 months. The Bureau of Justice Assistance distributed another $800 million in emergency COVID funding grants to police departments nationwide.
While in a given year only a limited portion of the country’s law enforcement agencies receive funding from BJA grants, virtually every police department in the country has at some point received funding from BJA. Each year, thousands of departments continue to compete for additional federal funding. With local and state governments bracing for steep budget shortfalls from COVID-shutdowns and the economic downturn, more police departments than ever before will be searching for alternative funding streams. This unfortunate situation presents Congress with a unique opportunity to incentivize meaningful reforms in police departments across the country.³⁶
PROPOSAL: REFORM COLLECTIVE BARGAINING AND POLICE CIVIL SERVICE RULES
At the state level, state legislators can directly create reforms to collective bargaining. If they are not willing to remove collective bargaining rights for police unions in general, which are today disallowed in only five states, they can remove the ability of unions to negotiate on terms and conditions of employment, or at least on disciplinary proceedings.³⁷
There is evidence that limiting police union negotiations over discipline can work. In 2006, the New York Court of Appeals held that, counter to the then common assumption, state law actually guaranteed to local governments the right to retain total control over police discipline, due the urgent necessity to guarantee effective police forces. Despite three separate attempts by police unions to pass bills overturning the ruling, three separate governors have vetoed the bills, and the ruling remains in place.³⁸ While earlier, almost 20% of NYPD police union contracts dealt with disciplinary rules, now these contracts contain just a few lines reiterating general laws. Today, the NYPD is widely regarded as a model institution, with very low uses-of-force numbers and low amounts of citizen complaints, accompanied by some of the lowest crime numbers of any big city in the nation.³⁹ In Dallas, the police department and the fire department unions must “confer and meet” on contract terms together, which means that they just negotiate on wages and benefits, not the disciplinary issues which are distinct for each department. Dallas also shows far below average rates of police abuse.⁴⁰
There is no evidence that in those states that forbid collective bargaining by police that there are significant number of removals of police for inappropriate or political reasons. In those states, such as Georgia, Texas, and Florida, which have reformed civil service removal rules for all public employees, there is ample evidence that managers and the public have seen increased accountability, without any noticeable increase in politicized firing.
More generally, the states can refuse to recognize collective bargaining agreements, or repeal any civil service rules, that contain clauses for delayed investigation of complaints, unfair access to records before making statements, and automatic arbitration on dismissals. Such reforms can guarantee that police officers can keep themselves accountable.
CONCLUSION
One lawyer dealing with police department discipline recently said, “It takes an edict from the king to fire a bad cop, many times because of the union.” Unions today not only ensure their members get high pay and benefits; they ensure that their worse members don’t get disciplined. These bad cops not only cost the police department credibility and respect, they often also cost the departments tens of millions of dollars in lawsuits a year.⁴¹ That is why police chiefs and public officials everywhere are demanding reform to police union power. The Police Chief in Minneapolis, where George Floyd’s death sparked the recent protests, has said he is stepping back from further negotiations with the union.⁴²
Even many public sector unions have come agree on the need for reform. The head of the American Federation of Teachers, and a member of the AFL-CIO board, said that “None of our contracts should shield misconduct.” The AFL-CIO has already put forward reforms to police union bargaining.” AFL-CIO President Richard Trumka said that “We would like to work with those unions to create a code of excellence so that we can exemplify the best conduct that’s out there⁴³
We need our police forces to protect us against bad actors. But we also need to ensure that police forces protect the public against bad actors coming from inside the forces themselves. We can do that with police union reform, which will help good officers do their job and help restore public respect for our police.
Two Birds, One Prosecutor