Until bad cops are fired, they will feel emboldened to act as they wish — including by using deadly violence of the kind that killed George Floyd in Minneapolis. Until departments can get rid of officers who make racist posts on social media, Black citizens will have no reason to trust the officers who are supposed to protect them. Until officers who give policing a bad name can get the boot, all police will pay the price of association.
Unfortunately, in cities across America — including Minneapolis — it’s much too hard to fire bad cops. That’s partly because police unions have figured out how to use the collective bargaining process to create an alternative justice universe — one that protects cops and ultimately empowers them to do what they want, with little fear of discipline or career consequences.
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Consider the recent Minneapolis debacle involving excessive police force: For nearly nine minutes, Derek Chauvin, a white police officer, dug his knee into Floyd’s neck, after arresting the Black man for allegedly buying a pack of cigarettes with a counterfeit bill. Every second of Chauvin’s cruelty was caught on video. But that didn’t change Chauvin’s behavior, nor that of three fellow officers who did nothing to intercede as Floyd begged for air.
Chauvin had plenty of reason to feel above the law and untouchable. During his nearly 20 years in the department, he faced at least 17 misconduct complaints, The New York Times reported. Yet Chauvin was never disciplined, beyond two letters of reprimand. After the video of Floyd’s death went viral, Chauvin was fired, and then charged with third-degree murder, which on Wednesday was upgraded to second-degree murder. The other officers were also fired, and now face charges of aiding and abetting murder. But whatever happens to the officers in the immediate aftermath of this horrific incident, it’s probably not the last word.
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“Holding officers accountable is more time-consuming and difficult in those places with strong collective bargaining agreements,” said Chuck Wexler, the executive director of the Police Executive Research Forum, a Washington-based law enforcement think tank.
State legislatures set the parameters for public-sector unions and decide what can and can’t be haggled over in collective bargaining agreements with police, firefighters, teachers, and other public employees. It’s one thing for police unions to bargain over salaries. But in many states, public-sector labor law also allows police unions to bargain discipline. That’s a power they have used with gusto: Police contracts routinely contain provisions that restrict how and when an officer can be questioned after a complaint is filed, call for the destruction of prior disciplinary records, ban civilian oversight, and require arbitration in cases of disciplinary action.
Why have cities agreed to such concessions? Because political leaders are willing to give up accountability in exchange for lower wages and benefits. “Cities are agreeing to bad deals," said Stephen Rushin, who teaches criminal law, evidence, and police accountability at Loyola University School of Law in Chicago. Accountability is on the table, he said, “to save money.“ For a 2017 Duke Law Journal analysis Rushin analyzed 178 collective bargaining agreements and found that “a substantial number unreasonably interfere with or otherwise limit the effectiveness of mechanisms designed to hold police officers accountable for their actions.”
It’s not realistic to expect cities suddenly to become tougher in contract negotiations. The solution is for states like Massachusetts to simply take the temptation off the table, by preventing cities from bargaining away discipline in the first place and restricting union negotiations to matters like general working conditions, salaries, and benefits. But there’s bipartisan reluctance to take on police and their unions. “On the right, they (police) represent law and order. They are representatives of labor unions on the left. That is the way they coalesce political support,” said Rushin.
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Citizen advocacy groups like Campaign Zero — which Rushin cites in his law journal article — have been analyzing police contracts and pushing for states to implement laws that keep police accountability out of collective bargaining agreements. Based on an analysis done by Campaign Zero, the most recent Minneapolis labor agreement available for public review restricts and delays police interrogations; limits oversight discipline; requires the city to pay for costs relating to misconduct, including giving paid leave while under investigation and paying legal fees; and calls for the erasing of misconduct records. ”Police accountability is so core to public safety and communities of color it shouldn’t be negotiated away,” said Samuel Sinyangwe, a Campaign Zero researcher.
Police have a tough job, and it’s important that they get some due process when accused of wrongdoing. But the scales have tilted far too much, and on the streets of American cities there is a palpable frustration with the lack of democratic control over police departments. The urgency of these times calls for the political will to ensure that bad cops can — and will — be fired.
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Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
