NO BARGAIN: Why Don’t Bad Cops Get Fired? The Power of Police Unions

We know that problem cops are tough to fire. The reason—their unions. That has to change. Now.

As an expert on the radical right over the last 25 years, I’ve spent an inordinate amount of time defending American police departments against claims that they were riddled with members of the Klan and other white supremacist groups.

After all, I reasoned, while it was unquestionably true that many these departments had once been closely linked to the Klan and its violence, times had changed, and it was now a rarity to find a Klansman cop. I was coming from the same place that has led me to consistently defend law enforcement against claims of carrying out a deliberate mass murder at Waco in 1993. It simply wasn’t true, and no good could come of exaggerating the evidence of police misconduct.

But now there are a few other things that need to be said.

I still believe that the majority of law enforcement personnel are decent human beings, often highly idealistic, and faced with a job that is harrowing, dangerous, and poorly paid to boot. But that there are also substantial numbers of really bad police officers is now indisputable, a fact made plain by the same video technology that has finally convinced large majorities of white Americans to recognize the reality of police brutality aimed at Black men and women.

Still, I don’t think that the problem is necessarily that careers in law enforcement attract much more than their share of violent individuals. There are a certain percentage of unpleasant people in all fields, all social strata and all societies. The most immediate and important problem, I would suggest, is the often atrocious and reactionary role played by labor unions in law enforcement.

I am not generally a critic of unions or the labor movement. For several years of my early career as a newspaper reporter, I specialized in covering the steelworkers and other industrial unions, and I believe that the labor movement has done this country an enormous amount of good. Those who see organized labor as universally corrupt are unread ignoramuses who know nothing of history.

But police unions are not normal labor organizations. Although research is limited and ongoing, there is now plenty of evidence to conclude that these unions have, again and again and again, played a really terrible role in American life.

A 2019 study by three University of Chicago Law School professors found that collective bargaining rights for police departments “led to about a 40 percent increase in violent incidents of misconduct” in those departments. Rob Gillezeau, an economist at the University of Victoria, found that police unions brought with them “the protection of the ability to discriminate.” A 2006 Bureau of Justice Statistics study found that use of force complaints against police averaged 23 per agency without collective bargaining, and 53 per agency with it. Fifteen percent of those complaints were sustained where there was no police union, while just 6 percent were where one existed. A 2017 study by Katherine Bies in the Stanford Law & Policy Review found police unions “have brought about anti-democratic outcomes … to impede reform efforts for greater transparency and accountability.”

That included union-negotiated appeals processes that have vastly diminished the ability of ranking officials to fire officers. In 2017, The Washington Post studied 37 of the country’s largest police departments and found that since 2006, they had collectively fired 1,881 officers — and then were forced, as a result of contractually mandated appeals processes, to hire back 451 of them. A 2018 study by Stephen Rushin, published in the University of Pennsylvania Law Review, examined 656 police contracts and likewise found that appeals processes resulted in a “troubling pattern” of forcing the rehiring of problematic officers.

The comments of union leaders, at a time of national protests against police brutality, reinforces the reactionary aspects of police unions. In Minneapolis, where the murder of George Floyd initiated the current wave of protests, union leader Lt. Bob Kroll called the firing of four officers involved in that killing “despicable behavior.” Kroll has been the subject of 29 citizen complaints, and the state branch of the unaffiliated AFL-CIO has called on him to resign his post.

In Philadelphia, where officer Joseph Bologna faces aggravated assault charges for inflicting head wounds on a student protester who needed 10 staples and 10 sutures, union chief John McNesby accused the local district attorney of having an “anti-police agenda.” His union is selling “Bologna Strong” T-shirts, and unionized supporters cheered Bologna outside the union’s headquarters.

In Buffalo, 57 unionized members of the police department’s Emergency Response Team quit that team in protest of the firing of two officers who pushed a 75-year-old protester to the ground, resulting in head and possible brain injuries.

And in Brevard County, Fla., the local unit of the Fraternal Order of Police posted Facebook messages from union chief Bert Gamin encouraging the “Buffalo 57” and recently fired officers from elsewhere to join their department.

Most labor unions negotiate wages, hours, and conditions of work, along with providing mechanisms for filing grievances against managers. The police unions have gone far beyond that to create appeals processes that can have as many as half a dozen layers and strongly favor exoneration; to push laws or contractual agreements prohibiting the public from seeing officers’ disciplinary records; to delay, sometimes by days, any interviews with the officers involved; to give unions a voice in selecting arbitrators in the appeals process; to forbid the implementation of civilian complaint review boards to study complaints; and any number of other clauses that make it a herculean task to fire even the worst police officers.

That has begun to change in recent days, as municipalities and states take up proposed new laws that would bypass some of the unions. But the police unions are still extremely strong, and any changes will have to be hard fought indeed.

I recently spoke to Jim Schmitz, an old friend and for some 30 years the national organizing director for AFSCME, the American Federation of State, County and Municipal Employees, and now a union consultant. He discussed his personal views about the potential for improving law enforcement unions.

“I don’t deny that police work is thankless and hard and dangerous,” he told me. “I believe that every worker should be entitled to union representation, to bargain terms and conditions of work. But we also have to realize that what sets police apart is their ability to use force, particularly deadly force.”

Every state that allows collective bargaining for public employees, Schmitz pointed out, defines the scope of bargaining allowed. That means that in many cases state law would have to be changed to, for example, withdraw the unions’ legal ability to bargain over use of force or disciplinary process policies.

But Schmitz argues that that can and probably should be done. “We have to look at perhaps carving out some areas of police bargaining as it relates to force,” he said. “Police could have their unions, their contracts, bargain for wages, benefits, hours of work, the kinds of equipment they need to do their jobs. I also think it’s important that they have a mechanism to inform top management what the issues on the street are. But I think the time is past when you can say that there should be no citizen involvement when you’re dealing with bad cops.”

Schmitz also argues that it makes sense to work to avoid hiring bad cops in the first place. “I’m intrigued with what role we might fashion for community involvement in officer recruitment, screening, and training. Why not weed out the bad guys before they get in? Let’s face it: There are some police officers that are anti-Black, anti-brown, that are violent. We’ve got to, as communities, deal with that. They cannot be exempt from any kind of review. But let’s weed them out at the front end, although I’m not sure yet what that would really look like.”

Earlier this month, the AFL-CIO issued a remarkable statement. It rejected calls to expel a member union, the International Union of Police Associations, from the nation’s largest labor federation. But it also said plainly that “a union must never be a shield for criminal conduct.” And it added: “The scourge of police violence against black people in America has reached a tipping point.” As Harold Meyerson argued recently in The American Prospect, “the gap between the union movement and cop unions has never been wider.” Even more remarkable, the King County, Wash., Labor Council last week actually did expel the Seattle Police Officers Guild, saying it had failed to take on racism among its members.

Indeed, the “scourge of police violence” is something that must finally be dealt with. With polls now showing some three-quarters of Americans support protesters’ accusations of systemic racism in American policing, there has never been a better moment to take on that task. But in order to do that, we as a nation are going to have to finally roll back the bloated power of police unions.

Mr Mark Potok is a Senior Fellow at CARR and a Freelance writer, speaker, consultant, expert on right-wing extremism. See his profile here.

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