Arthur Rizer and Jesse Kelley
After the brutal summer of 2020, relations between police and many of the communities they serve — especially communities of color — have reached an all-time low. Well-intentioned reformers have cast about for proposals which can repair relations and increase police accountability. Most people in the United States support some type of policing reform. But for these reforms to succeed, they need to address a hidden cause of police brutality: union contracts that shield officers from meaningful oversight and accountability. Federal and state lawmakers are in a unique position to restore public faith in the police by rolling back collective bargaining agreements which give free rein to police misconduct.
Police unions negotiate collective bargaining agreements for their members, almost always including requirements around police discipline. These provisions tend to favor law enforcement officers and shield them from oversight, even when an officer has violated a person’s civil rights or used unnecessary force.
Some examples include: “cooling off” periods that prohibit investigators from interviewing an officer for days or even weeks after a use-of-force event; limits on the time or scope of investigative questioning; prohibitions on civilian review boards or oversight; and provisions that seal disciplinary records. Those officers who sincerely endeavor to fulfill their duty to “protect and serve” have their efforts at community engagement thwarted by officers who rely on these agreements to evade responsibility for misconduct.
Policing can be dangerous, and many police officers undertake their public service out of a sense of duty and responsibility. For those officers, increasing accountability standards and reducing the impact of “bad apples” in their departments should be a welcome and relatively simple change. Plus, leadership within police departments — police chiefs and commissioners — have spoken up about the unfettered power of police unions. Recently, a group of chiefs from large cities across the country signed an open letter arguing that “contracts and labor laws hamstring efforts to swiftly rid departments of problematic behavior.”
Ultimately, legislative action can stymie the power of police unions. Congress can tie federal criminal justice grant funding to the institution of rules which enhance transparency and accountability in local departments. Federal lawmakers could impose use-of-force data reporting and required de-escalation training.
By tying federal monies to needed reforms, local law enforcement offices would be incentivized to implement these needed reforms themselves. This push toward better practices can also encourage autonomy as local departments draft reform provisions which best fit their community while remaining within the stated outlines of federal legislation. The goal is to make police departments more effective for their community; not cripple them or impose a one-size-fits-all solution.
Secondly, at the state level, lawmakers can declare contract provisions which shield officers from meaningful oversight and accountability as contrary to public policy, while still allowing collective bargaining for equitable work standards.
Policing is a unique profession — officers carry deadly weapons and have the authority to detain and arrest a citizen. Allowing collective bargaining — instead of principles of due process and accountability — to dictate how the misuse of that authority is investigated and disciplined will hamper any effort at policing reform, no matter how well-designed or well-intentioned.
One bad apple can ruin the barrel, and when it comes to policing reform, every step must be taken to ensure that the bad apple can be removed swiftly. Most Americans and many police chiefs agree that effective reforms begin with increased accountability within departments and for individual officers. Reforming police union collective bargaining is a critical step in restoring strong police-community relations.
Arthur Rizer (@arthurrizer) is the director of Criminal Justice and Civil Liberties Policy Program at the R Street Institute. Arthur is also an adjunct professor at Antonin Scalia Law School, George Mason University, and a former police officer and federal prosecutor.
Jesse Kelley (@JessDKelley) is the government affairs manager for Criminal Justice and Civil Liberties Policy Program at R Street and a former criminal defense attorney.