A court in 2009 convicted Washington DC police officer Michael Sugg-Edwards of sexually assaulting a teenage woman in his squad car. After conducting its own internal investigation, the department quickly fired the then 35-year-old officer.
But, six years later, Sugg-Edwards was back on the force. A provision in the police union’s contract allowed him to appeal against the decision to a union-selected arbitrator who reversed the department’s firing and reinstated him – with back pay.
Such protections for officers who commit crimes are not unique to Washington. About 475 police union contracts at the nation’s largest departments hold similar arbitration provisions, according to a 2019 Loyola University study. Those are accompanied by a startling array of other complex protections that shield officers accused of often violent misconduct from accountability.
It all builds up to form a picture of how police contracts – which, like other labor contracts, govern the working conditions under which officers operate – have rendered police departments’ disciplinary and oversight processes ineffective as officers are rarely held accountable for wrongdoing. That then encourages the police violence that sparked the massive nationwide protests in the wake of George Floyd’s killing by a white police officer in Minneapolis.
“These [contract provisions] tie the hands of police chiefs and others who are trying to hold police officers accountable,” said Carl Takei, an ACLU senior staff attorney focused on police practices. “It makes it very difficult to fire or discipline officers who engage in misconduct.”
The protections’ impact on officer accountability is documented in a growing body of empirical studies and analyses. Nearly 90% of contracts at 178 midsize-to-large departments have at least one “problematic provision” that “could thwart legitimate disciplinary actions against officers engaged in misconduct,,” Loyola policing scholar Stephen Rushin wrote in a 2017 study of contracts and police bills of rights.
• 137 police agencies prohibit investigators from interrogating officers immediately after an incident. Louisiana’s bill of rights grants officers 30 days, while Chicago officers are provided 48 hours.
It makes it very difficult to fire or discipline officers who engage in misconduct
• 184 jurisdictions allow officers to review evidence against them before being interrogated.
• 47 agencies require expungement of police misconduct records, in some cases after as little as two years. Others entirely shield disciplinary records from the public.
• 74 departments don’t allow an officer’s misconduct history to be considered in future cases.
• At least 40 departments require taxpayers to cover an officer’s defense expenses.
Rushin said the protections’ impact is clear: “We have definitely made a lot of collective bargaining concessions at a substantial number of departments that can make it extremely difficult to hold police officers accountable.”
That’s illustrated in the Floyd case. The Minneapolis police department contract and Minnesota police of bill of rights helped protect officer Derek Chauvin, who, before killing Floyd by kneeling on his neck, had been investigated by internal affairs at least 17 times since 2001.
Per the union contract and bill of rights, the department erases exonerated or unsubstantiated misconduct records; delays interviews for 48 hours after an incident; prohibits meaningful civilian review boards; grants officers access to some evidence in an investigation; allows disciplinary action to be overturned by an arbitrator; and requires the public to pay for an officer’s defense.
Even amid intense public outcry, most details of previous complaints against Chauvin remain hidden from the public.
A recent study strongly suggests contractual protections increase violent behavior among officers. It examined violent misconduct records after a 2003 Florida supreme court ruling that allowed the state’s sheriff’s departments to unionize. City departments already had collective bargaining rights, so the study compared violent incidents at the two types of departments.
It found a 40% increase in violence – like assault and excessive force – at the sheriff’s departments and no increase at the city departments.
“We really think what’s driving this is decreased deterrence of wrongdoing from collective bargaining, and that’s a really significant part of the policing story,” said John Rappaport, one of its authors and a policing scholar at the University of Chicago Law School.
Officers may feel safe committing crimes because data suggests that those who engage in misconduct are rarely disciplined internally.
A Chicago police review taskforce found only 7% of complaints resulted during a four-year period in disciplinary action, and arbitrators reversed or reduced punishments in 73% of those cases. The report stated that collective bargaining agreements “provide an unfair advantage to officers” and “have essentially turned the code of silence into official policy”.
The officer who shot Laquan McDonald 16 times in the back escaped discipline in more than 20 complaints against him for excessive force. The Chicago police contract offers a range of protections from delaying interrogations to arbitration. Meanwhile, a Washington Post investigation of large departments found more than 450 out of nearly 2,000 officers fired for wrongdoing were reinstated, despite committing often violent crimes.
In San Antonio, an officer fired twice for challenging handcuffed suspects to fight him for their freedom was reinstated by an arbitrator both times. A second San Antonio officer who engaged in unauthorized car chases was also reinstated twice. In Columbus and Oklahoma, officers who kicked men in the head were rehired.
Cities made many of the disciplinary concessions to unions in lieu of pay increases during the 1980s when municipal tax revenue was tight. Unions won’t give up those protections, Rushin said, which leaves it to politicians to enact change.
He noted state lawmakers can force transparency by opening the collective bargaining process. In Washington, legislation approved this month takes away the union’s ability to negotiate disciplinary processes and gives that authority to the police chief and mayor, the DC council chairman, Phil Mendelson, told the Guardian.
“When police have the ability to kill somebody, the disciplinary process should not be bargained for,” he said. “When the police have the ability to take away liberty, the police should not be policing themselves.”