DEL. DAVE LAROCK AND CHRISTIAN N. BRAUNLICH
A very few bad cops make life really difficult for the brave and dedicated law enforcers who are absolutely essential to maintaining order and keeping us safe. Those few bad cops may wear the same uniforms, but they are very different. So why is it so hard to discipline or fire a bad cop? The answer is simple: no matter how bad they are, most are protected by police unions and the collective bargaining agreements the unions negotiate.
Collective Bargaining Agreements (CBAs) are a significant barrier to basic accountability. A review of police contracts in 81 of the nation’s largest cities demonstrates a number of ways accountability over police actions is thwarted. Fifty cities restrict interrogations by limiting how long an officer can be interrogated, who can interrogate them, the types of questions that can be asked, and when an interrogation can take place — sometimes delaying interrogations for up to 30 days. Forty-one cities give officers under investigation access to information that civilian suspects do not get. Sixty-four cities limit disciplinary consequences for officers, including preventing an officer’s history of past misconduct from being considered in future cases. Forty-three cities erase records of misconduct, in some cases in as little time as six months. Perhaps worst of all,48 cities let officers appeal disciplinary decisions to an arbitrator who can reinstate that officer.
Unfortunately, without action by the General Assembly, police unions or associations and their CBAs are coming to Virginia starting in May 2021. Local governments and their police unions will negotiate the conditions of the disciplinary process against misbehavior by individual police officers.
A powerful warning comes from a group that is not exactly dominated by conservatives, the United States Conference of Mayors. In their recently-released Report on Police Reform and Racial Justice, our city’s mayors agree: CBAs are a significant barrier to basic accountability. The report points out (p. 29): “…Over the years, police contracts — union CBAs — have evolved into much more than standard labor contracts. …many have grown to include substantial barriers to basic accountability.…CBAs often contain provisions that go far beyond what is necessary to protect those rights. Some provisions look innocuous on their face, but they can severely impair a department’s legitimate need to investigate allegations of police officer misconduct and hold officers accountable….”
Let’s be clear here, without legislative intervention, unions will negotiate agreements with local governments that protect bad cops, period. These are the type of bad cops that benefit from this new law in Virginia: Jason Van Dyke, of the Chicago Police Department, who in 2014 killed 17-year-old Laquan McDonald by shooting him in the back as he was walking away. At the time, Van Dyke had been the subject of 20 complaints, 10 of which alleged excessive use of force. Hector Jimenez, of the Oakland Police Department, killed an unarmed man, shooting him three times in the back as he ran away — just seven months after Jimenez had shot and killed an unarmed 20-year-old. Despite killing two unarmed men and costing taxpayers $650,000 in a settlement to one of the dead men’s family, he was reinstated and given back pay.
On May 25, 2020, George Floyd, a 46-year-old African-American man, was killed in Minneapolis, Minnesota, while being arrested for allegedly using a counterfeit bill. Derek Chauvin knelt on Floyd’s neck for several minutes. According to the New York Times, “In nearly two decades with the Minneapolis Police Department, Derek Chauvin faced at least 17 misconduct complaints, none of which derailed his career. Even as outrage has mounted over deaths at the hands of the police, it remains notoriously difficult in the United States to hold officers accountable, in part because of the political clout of police unions…”
We can avoid some of the barriers to law enforcement accountability experienced elsewhere in the nation by limiting the scope of police union CBAs. HB5071, the Law Enforcement Transparency and Accountability Act, filed in the 2020 Special Session, is still alive and would block provisions in CBAs which hinder investigations and ultimately block accountability actions. Passage of this bill in Virginia would stifle unions that sometimes seek to protect bad cops at all costs.
Del. LaRock represents the 33rd District in the Virginia House of Delegates. Christian N. Braunlich is president of the Thomas Jefferson Institute for Public Policy.