Is Collective Bargaining by Police Departments Acceptable?

Decades ago managers of police departments could count on four external mechanisms establishing cases for disciplining frontline police officers.  The externalities are:

1.    The exclusionary rule dismisses evidence in a trial if it was improperly obtained by the police.  The case would often be dismissed for lack of evidence, and afterward dismissal of the offending officers.

2.    Suits brought against officers for breaches of civil rights,

3.    Criminal prosecution for felony actions by a police officer,

4.    Person’s filing complaints against an officer with the Police Department.

The first three all result in the community’s knowledge and to expect the police department’s correction and community satisfaction.  Public opinion strongly supports disciplining officers that fail in their duties.  Only the exclusionary rule still exists, but is less likely to be occasioned because officers are better trained to know it, and to play by the rules.  The other externalities, being far more numerous have been substantially blunted by states’ authorizing or requiring collective bargaining between unions and police departments.  Only four states prohibit collective bargaining – Georgia, North Carolina, South Carolina and Virginia.  Every other state has some collective-bargained police departments, and most certainly among the largest cities.

Union involvement in collective bargaining with police departments is not monolithic, and neither are the police departments that are unionized.  It appears there are two police-only unions, and another handful associated with AFL-CIO, AFSCME, SEIU and perhaps one or two more multi-purpose unions.  Frontline officers are most commonly unionized by the Fraternal Order of Police, while other sections of the department are aligned elsewhere, or not at all.  Every state except the four union-prohibiting states has some collectivized-bargaining police departments.   Most states have interpreted broadly such terms in state law as “terms and conditions of employment” to include negotiation of internal procedures to investigate and punish officers for misconduct.  These are precisely where community dissatisfaction with collective bargaining is troublesome.  Furthermore, these contracts are between frontline officers (exclusively) and the union, so it means that contracts often contain procedural definitions that blunt disciplinary actions by Police Department management.  Unions have for instance obtained contracts permitting erasure of decades of complaints against police officers and providing “soft” actions for most disciplinary offenses.  Chicago, Baltimore and Cleveland are examples where independent reviews have uncovered expungement of officer performance records such that what remains reveals only few and lesser charges than are believed to have occurred. In the Chicago Police Department the DOJ found only 2 percent of all civilian complaints result in any sort of disciplinary action.  DOJ also found the Chicago Police Department engaged in a pattern or practice of unconstitutional misconduct – meaning federal violations of civil rights.

Academics interested in collective bargaining contracts have uncovered sufficient information to show that as a rule-of-thumb; ninety percent of disciplinary issues involve only ten percent of frontline officers.  Specifically, in response to the notoriously reported murder of Laquan McDonald by Officer Jason Van Dyke in 2014 in Chicago’s south side, it was originally reported by the City that Van Dyke’s record did not flag issues of behavior in his file, but it was subsequently revealed there were twenty complaints, half of which concerned use of force and one led to a $350,000 civil litigation settlement by the City of Chicago.  Fourteen months after McDonald’s killing, the police dash-camera recording was released by the court and changed a ho-hum situation into a federal investigation.  Furthermore, Chicago’s overall records showed that of approximately 12,000 frontline officers working for the Chicago Police Department, 402 or 3.35 percent had twenty or more community complaints.  

A long essay in the Duke Law Review,“Police Union Contracts” [Volume 66, Number 6, March 2017] contains information concerning a review of 178 police union contracts.  It concludes:  “There is a link between police-union contracts and limitations on police accountability.  Not only do officers present a “wall of silence” to management and investigators, but there are structural elements of the contracts which are designed to inhibit discovery of or proof of wrongdoing.”  The collective bargaining process happens largely outside of public view and with minimal input from community stakeholders most at risk of experiencing police misconduct.  In light of these findings, this Article argues that states should amend labor laws to increase transparency and community participation in the development of police disciplinary procedures.” (At 1199)

Apart from collective bargaining issues, a June 10, 2020 “One-Page Essay” titled, “Correcting Police Immunity-from Prosecution in Civil Rights Abuses” describes how a Supreme Court decision of more than five decades ago thwarts justice.  On June 15, the Supreme Court voted not to accept any of the cases it had been petitioned to hear on this type of injustice.                                                                                                   July 3, 2020