How Union Contracts Shield Police Departments from DOJ Reforms

JULY ISSUE | June 21, 2016

Few were surprised on Dec. 7, 2015, when U.S. Attorney General Loretta Lynch announced a civil rights investigation of the Chicago Police Department (CPD). The city had recently released a dash cam video of officer Jason Van Dyke killing 17-year-old Laquan McDonald. Graphic footage showed the officer firing a hail of bullets at the black teen as he walked away.

Forty-eight hours after Lynch’s announcement, Chicago Fraternal Order of Police (FOP) President Dean Angelo boarded a plane to Washington, D.C. to meet with the Department of Justice (DOJ). In the wake of McDonald's death, the union has faced growing public scrutiny over its alleged role in shielding his killer. Since 2006, Van Dyke had been the subject of nearly 20 citizen complaints, including accusations of excessive force and use of racial slurs. Critics say the disciplinary process spelled out in the FOP union contract helped ensure he stayed on the force. Angelo shoots back that it's “absolutely untrue” that police officers cannot be disciplined, and he wants to ensure the union has a place at the table when the DOJ investigates this issue. Chicago police-accountability advocates, for their part, point to a host of union rules they hope federal investigators will examine, including those requiring that investigators provide questions ahead of time to police officers accused of misconduct and allow them to amend their statements after viewing video or audio evidence.

Chicago is one of several cities, including Ferguson, Mo., and Baltimore, where the DOJ has recently opened investigations in response to high-profile police killings. The Obama administration has relied heavily on a 1994 civil rights law empowering the Justice Department to oversee local law enforcement. If the DOJ is able to document a “pattern or practice” of civil rights abuses, it can compel cities to reform under threat of litigation. The most rigorous outcome, called consent decrees, are settlement agreements that must be approved and monitored by federal courts. So far, Obama’s DOJ has established consent decrees with 11 cities. This represents a more aggressive posture than that of the Bush and Clinton administrations, during which just six consent decrees were reached with local police departments.

It’s unclear, however, how well these measures work. The DOJ does not track the long-term outcomes, but a November 2015 Washington Post investigation reviewed available data from 10 police departments subject to federally mandated reforms during the past two decades. Half of them had seen use of force by officers decline or stay the same during and after the agreements, but the rest had seen it increase.

Stephen Rushin, a law professor at the University of Alabama who specializes in policing, has characterized DOJ enforcement as “inconsistent.” Others say that reforms flounder because the department doesn’t achieve buy-in from police officers.

A less-explored reason for this mixed record is that collective bargaining agreements between cities and police unions can prevent the implementation of reforms. Consent decrees often include caveats that police practices can only be overhauled to the extent allowed by union contracts.

From the July 2016 Issue | purchase a copy

In These Times reviewed the 17 consent decrees reached between local governments, police departments and the Justice Department between 1997 and 2016, as well as news articles and federal monitors’ reports discussing how cities have—and have not—complied with the settlements. In at least seven cases, collective bargaining agreements presented a roadblock to achieving key reforms required by the settlements. Police unions watered down measures that contradicted their contracts, or they launched legal challenges that, even when unsuccessful, delayed implementation.

With the DOJ investigation in Chicago underway and the FOP contract up for renewal in June 2017, should the movement for police accountability turn its eye to the contract renegotiations? This in turn raises a thorny question: Will upholding civil rights require curtailing collective bargaining rights?

In at least seven cities, collective bargaining agreements have presented a roadblock to achieving key reforms required by DOJ settlements

To serve and protect?

In broad strokes, police union contracts are no different from those negotiated by teachers or firefighters unions—they contain guarantees around wages, benefits, discipline and processes for members to air grievances with management.

But when it comes to oversight provisions, police enjoy “a level of insulation … that is greater than other city and state workers,” notes Alex Vitale, a sociology professor at Brooklyn College.

Special protections enjoyed by many police unions include delays in giving statements after a shooting, which may give officers time to confer and “get their story straight,” statutes of limitation on imposing discipline and rules restricting how and when civilians can investigate police. After hackers obtained more than 60 police union contracts from the FOP website earlier this year, a February analysis in The Guardian revealed that more than a third contained provisions allowing or requiring destruction of civilian complaint records. Police-accountability advocates say this kind of provision, which also appears in the Chicago FOP's contract, makes it more difficult to track down police who commit serial abuses.

Police contract protections appear to have weakened or stalled efforts to improve the handling of police misconduct, create or extend civilian oversight, and establish early-warning systems for problem cops.

In April, the Chicago Police Accountability Task Force, convened by Mayor Rahm Emanuel in the wake of McDonald’s death, issued a scathing report that pointed to police union contracts as one of the barriers to meaningful accountability.

“The collective bargaining agreements between the police unions and the City have essentially turned the code of silence into official policy,” wrote the report’s authors. They then ticked off a list of problematic provisions. Among them, the agreements discourage reporting misconduct by requiring affidavits, prohibit citizens from filing anonymous complaints and require that accused officers be given the complainant’s name early in the process.

Chicago advocates say these and other protections have allowed some of the city’s most notorious police officers to commit crimes with impunity. Cmdr. Jon Burge and his so-called “midnight crew” evaded serious charges despite decades torturing confessions out of black men, beginning in the 1970s. Flint Taylor, a founding partner of the People’s Law Office who represented many Burge victims, blames this on what he calls “the Burge rule”—unless a police chief signs off, investigations of civilian complaints are subject to a five-year statute of limitations.

Pat Hill, a retired Chicago police officer who served on the force for 21 years, argues that some of these safeguards are necessary to protect workers doing a difficult job. Requiring investigators to throw out anonymous complaints is important, she says, because criminals who have an axe to grind with certain officers frequently lodge false complaints again them. But Hill, who was head of the African American Police League, a group founded in 1968 to recruit more black cops with community ties, acknowledges that contract protections can also be used to cover up crimes. “Like anything else, if there aren’t checks and balances they get abused,” she says.

The rocky road to reform

That begs the question: In cities like Chicago where powerful police unions have carved out special protections, are DOJ-mandated reforms hamstrung from the outset?

In These Times’ review of the 17 past and ongoing attempts to implement consent decrees show that when unions believe changes encroach on their contract protections, they often fight back—and muck up the reform effort. This problem arose in the wake of DOJ settlements in Newark (2016), Albuquerque (2014), Seattle (2012), Portland (2012), the U.S. Virgin Islands (2009), Los Angeles (2001) and Pittsburgh (1997). In these cities, police contract protections appear to have weakened or stalled efforts to improve the handling of police misconduct, to create or extend civilian oversight, or to establish early-warning systems for problem cops.

Jonathan M. Smith, former chief of the special litigation section of the civil rights division at the DOJ, explains that this effectively limits the remedies that cities and the federal government can pursue. “It forces the parties to take less sufficient reform strategies because the union is standing in the way,” he says.

The DOJ’s first settlement under the “pattern or practice” law, negotiated with the city of Pittsburgh in 1997, includes the following caveat: “Nothing in this Decree is intended to alter the collective bargaining agreement between the City and the Fraternal Order of Police.” Since then, most settlements have contained similar language.

Rushin, who is currently reviewing police contracts in 100 cities to see how they impact police accountability, says these provisions allow the feds to arrive at a settlement without taking on powerful police unions at the outset. But the consent decree is thereby “just kind of kicking the proverbial can down the road,” he says.

Indeed, problems soon emerged in Pittsburgh. One key dictate was for the city to overhaul the civilian complaint process by requiring the agency conducting disciplinary investigations to look into all complaints and assess the potential for criminal charges. But early in the implementation phase, the monitoring team raised concerns that the Office of Municipal Investigations (OMI) wasn’t looking into all complaints, as required, because of a contract rule that limited complaints eligible for investigation to those filed within 90 days of an alleged incident. It also permits officers to refuse to give statements. When the consent decree was lifted in 2002, monitors noted that the OMI still had a sizable backlog of complaints that had never been reviewed.

Sometimes, unions seek to limit reforms before a settlement is even finalized. In 2011, the Justice Department launched an investigation in Portland, Ore., following the death of Brad Morgan, a 21-year-old who had called 911, threatening to commit suicide. Morgan then reportedly continued to make “suicide by cop” statements to the officers who arrived on scene before they fatally shot him, saying he had pulled out a realistic-looking plastic gun. A 15-month probe found that police engaged in a pattern of excessive force against people with mental illness, and the city reached a preliminary agreement with the DOJ in September 2012.

The union sued to intervene, arguing that proposed changes to use-of-force rules, oversight and training encroached on collective bargaining rights. A federal judge granted the Portland Police Association the right to negotiate with the city over what should and shouldn’t go into the reform package. The final consent decree was delayed until August 2014. In the intervening period, Portland police fatally shot a 50-year-old man who had been recently hospitalized for mental illness.

Problems persisted after a settlement was reached. The September 2015 report by federal officials says the city has failed to revise protocols for questioning officers in misconduct investigations. The collective bargaining agreement between the Portland Police Association and the city allows officers involved in serious use-of-force cases to receive 48 hours’ notice before they have to give a statement. Consultants hired by the city reviewed 11 shooting cases and found none of the officers involved gave a statement until at least 48 hours after the incident, per union rules, “and some even later,” according to the report they released in January.

“By agreeing to a contract that requires this delay,” the consultants say, “the City requires the [police bureau] to forfeit the opportunity to obtain pure contemporaneous statements.” Police management has agreed that the city should negotiate with the union to nix the 48-hour rule, but not until the contract expires July 2017.

Police unions aren’t always in the position of opposing reforms, says Newark FOP President James Stewart, Jr. When the DOJ opened an investigation into the city’s policing in 2011, he says the union’s attitude was “come on in,” and that it helped the feds unearth problems at the department. According to investigators’ findings, those included frequent pedestrian stops that violated residents’ civil rights three out of every four times they occurred.

Stewart says the union already opposed quota-based policing directives from police brass, which created pressure on members to conduct baseless stops and strained relations with community members. He approves of DOJ-mandated reforms related to the department’s officer training and community relations.

This rosy consensus does not extend to the city's effort to create a civilian oversight entity “to pursue concerns of its residents” by empowering them to review complaints, impose disciplinary actions and recommend policies to improve policing. The FOP in Newark has threatened to sue to block this move, saying that any changes to the disciplinary process must be negotiated with the union.

Ari Rosmarin, public policy director for the New Jersey ACLU, is encouraged by the union’s lack of vocal opposition to the DOJ process as a whole but concerned by its challenge to one of the most substantial reforms. “The unions aren’t looking for advice from people like us,” he says. “I’ll give it any way... it’s in their interest to get on board and be a good faith partner in changing the system.”

Holding the thin blue line

If police unions do not get on board, could the federal government impose changes unilaterally? Legally, the DOJ can’t use a consent decree to abrogate the contract rights of a union, except under exceptional circumstances. The principle of “constitutional supremacy” does give the federal government the authority to override collective bargaining provisions or state laws that demonstrably violate civil rights, says Lawrence E. Rosenthal, a constitutional and civil rights law professor at Chapman University in Orange, Calif. But that would likely require a full-blown trial, a messy path that could keep settlements tied up in court for years.

That leaves the ball in the court of state and local legislators, who experts say must push to repeal their so-called “police officer bill of rights,” revisit collective bargaining statutes and prepare to play hardball with powerful police unions. “I’m not saying that officers shouldn’t have meaningful due-process protections, but this has gotten out of control,” says Smith, the former DOJ official. “State legislatures have enacted laws that permit officers to over-negotiate these contracts, and cities don’t hold the line when they should.”

Harry S. Stern, a San Francisco-based lawyer who represents police officers in misconduct cases, says that due process protections for cops are essentially the same as those for teachers and firefighters. “We’re just demanding that police cases are not litigated by mob rule or in the court of public opinion,” says Stern. He believes that police are squeezed between the Right, which opposes collective bargaining on principle, and harsh police critics. Whatever their political motivations, Stern says these efforts amount to one thing: “union-busting.”

Brooklyn College’s Vitale disagrees. “What they’re really calling for is for city and state governments to aggressively renegotiate those contracts to put in provisions that allow for more oversight and more discipline for on-the-job misconduct.”

Collective bargaining negotiations happen behind closed doors, which can frustrate community members who don’t know how the reform agenda is being influenced at the bargaining table.

The Seattle Community Police Commission (CPC), a creation of the city’s consent decree, was tasked with proposing measures to improve police accountability systems. But since some of its preferred measures may conflict with collective bargaining agreement, the group cannot finalize them until the city and the police union reach an agreement on a new contract—a process that has been ongoing for 18 months. Seattle CPC co-chair and former public defender Lisa Daugaard says that the group is considering asking the city to disclose its bargaining position, which is currently formulated in secret, potentially limiting what can be accomplished by reformers. “It should be possible to evaluate whether the public’s representatives understand and are effective at achieving police accountability reform,” she says.

Vitale says there's a reason why the same local governments that crush teachers unions and slash public services have often been all-too-willing to accommodate police demands in contract negotiations. He believes this is part and parcel of the logic of austerity: Cities rely on police to suppress the crime and disorder that result when social services are gutted. “To cut or constrain [police] ability to use force threatens to undermine the whole project of shifting responsibility for social order onto the backs of police,” he says.

Members of BYP100's Chicago chapter rally on January 16 at the Fraternal Order of Police credit union demanding that the city divest from the police department.
(Photo by Sara Jane Rhee)

“Remember who you work for”

Back in Chicago, FOP President Angelo is irked by what he says is posturing by city officials suddenly pledging to take on the union to quell public anger.

When Chicago ratified the current FOP contract in October 2014, Angelo says aldermen voted unanimously for the collective bargaining agreement, praised his leadership and gave a standing ovation. No one complained about provisions in the contract, many of them more than 30 years old, that allegedly muck up misconduct investigations and make it hard to discipline cops who misbehave.

Yet in the aftermath of the Laquan McDonald shooting, many elected officials in Chicago began talking tough about making changes to the FOP contract when it expires in June 2017, especially those aldermen representing majority-black wards. Ald. Howard Brookins admits that the political climate has rarely created an opportunity for officials to wrestle with the FOP—but now he and others in city government say there may be political will to do so.

The people most impacted by police misconduct, by contrast, typically lack political power, putting them at a disadvantage when it comes to forcing change in a union contract or state laws that bolster controversial contract rules. Hoping to gain the upper hand, activists in Chicago are already turning their attention to pressuring city and state lawmakers to take a tougher stance when the FOP contract is up for renegotiation in June 2017.

On MLK Day, black activist group BYP100 held a demonstration outside the Chicago FOP credit union. Page May, an organizer with the group Assata’s Daughters, says that recent victories will help force lawmakers to take the contract renegotiations seriously. She helped spearhead the #ByeAnita campaign calling for the resignation of Cook County State’s Attorney Anita Alvarez, accused by many of botching the cases of McDonald and other police-shooting victims. While Alvarez did not resign, she lost to progressive challenger Kim Foxx this spring in a remarkable upset during the Illinois primary. May says local politicians could face similar consequences if they come off as soft against the police unions.

“We got Anita Alvarez out—that sends a message,” May says. “You are accountable to the people. Not the FOP. And if you do not respect black life, at a minimum, then you’re out. You’re not going to keep your job. Remember who you work for: it’s us.”