This past spring, the killing of George Floyd sparked protests and riots in cities nationwide. State and local governments responded by banning choke holds and other police tactics. Some are now seeking to reduce police funding.
Floyd's death also put police unions under a microscope. A consensus quickly emerged, asserting that unions protect officers who behave poorly and impede reform that would improve policing and police-community relations. The central idea animating the new consensus is that police-union power has translated into too many officer job protections, enabling a few bad officers to act with impunity. The inability to hold officers accountable poisons public relations and puts American lives at risk. Rolling back protections enshrined in union contracts and state statutes, many now argue, will reduce the use of force by police and increase community trust in law enforcement.
This increasingly widespread view cuts across some of the usual lines of our polarized politics. The left may champion labor unions in general, but even before the spring's unrest, Democrats' relationship with police unions was fraught with distrust. Part of the issue is a lack of cultural affinity, as police unions and many officers tend to be temperamentally conservative. Indeed, law enforcement is often seen as the lumpenproletariat — the slice of the working class that lacks class consciousness and aligns with the reactionary forces of order. Police unions are also politically unreliable. Unlike teachers' unions, which are closely allied with the Democratic Party, police unions, while still favoring the Democrats, come closer to splitting their contributions between the two major parties. In short, for many on the left, police unions are the redheaded stepchildren in an otherwise beneficent labor movement.
Conservatives, on the other hand, disapprove of labor unions generally but have given police unions a pass as part of their support of law enforcement. In short, they worry that criticism of police unions will be mistaken for criticism of the police. Republican officeholders have also enjoyed ties with police unions. For instance, in 2011, when Republican Governor Scott Walker of Wisconsin and a Republican state legislature passed Act 10 to limit public-employee collective bargaining, they exempted police from the legislation. Iowa Republicans similarly carved out exemptions for public-safety workers in their 2017 reform of public-sector labor law.
Today, the left appears willing to excommunicate police unions, while conservatives are disposed to incorporate them into their critique of public-sector unions overall. This means that both sides will have to concede that the problems posed by police unions in particular are similar to those that plague public-sector unions in general. Such an admission is exactly what many leaders of organized labor want to avoid — they fear criticisms of police unions will be used to tar other public-sector unions.
Generally speaking, opponents of public-sector unions offer two main criticisms. One is that unions drive up the costs of government by increasing the wages and benefits for public servants. The other is that unionization and collective bargaining induce bureaucratic sclerosis, making it nearly impossible to re-organize public agencies to improve their performance. Government is thus forced to do less while spending more, which is a recipe for public frustration and mistrust.
Concerns regarding police unions in the wake of Floyd's death and the ensuing political unrest are less about the former and more about the latter. Critics on both the left and right argue that the work rules ensconced in both union contracts and state labor laws shield abusive officers. Many argue that reducing the power of police unions will empower police chiefs to modernize their organizational cultures, weed out bad officers, and thereby reduce police violence against civilians — especially black Americans.
While there is much to be said for this argument, it must be admitted that we know less than we should about the role police unions play in protecting abusive officers and undermining police-community relations. Although the small body of scholarly literature on police unions is nearly unanimous in finding negative effects, police unions have been a neglected topic of study in the social sciences and have only recently begun to attract the attention of law professors. This suggests, at the very least, that we do not have a good grasp on what reducing job protections for officers in isolation could achieve or what unintended consequences it might have. In light of this reality, reformers' hopes should be modest. They should proceed with caution — but proceed nonetheless.
THE RISE OF POLICE UNIONS
Beginning in the 19th century, associations of police emerged to represent officers' interests publicly and offer solidarity privately. New York City's Patrolmen's Benevolent Association was formed in 1892 with the aim of raising money for widows of officers killed in the line of duty. Such benevolent associations and fraternal orders did not enjoy collective-bargaining rights, but they did seek to inform elected officials of officers' concerns. Compared to recent decades, however, their lobbying and electioneering activities were modest.
As labor unions began to emerge toward the beginning of the 20th century, many recognized that public-sector unions — especially groups representing police — posed challenges that differed from private-sector unions. The first prominent arguments that public-employee associations should be treated differently than those in the private sector came in 1895, when the postmaster general issued an order barring U.S. postal workers from visiting Washington for "the purposes of influencing legislation before Congress." Then in 1902, President Theodore Roosevelt issued a "gag rule" banning all federal employees from lobbying Congress on their own behalf. These moves set the tone for state and local governments.
In the first two decades of the 20th century, the question of whether police associations belonged in the labor movement at all was also debated. Some in the movement were concerned about the "divided loyalty" of police officers in situations where they were tasked with handling strikes by other unionists. Consequently, Samuel Gompers of the American Federation of Labor claimed to have "held off" on chartering police unions for years despite receiving numerous applications, beginning with a group of Cleveland police in 1897.
The ability of police to exercise political power in their own right came to national attention with the Boston police strike of 1919. After World War I, Boston police officers — complaining of low pay, lousy working conditions, and autocratic bosses — sought to organize a union and affiliate themselves with the AFL. The city's commissioner denied the officers' right to unionize. In response, about 80% of Boston's police force went on strike. Over the following three days, lawlessness reigned, resulting in many injured persons and much property damage. Calvin Coolidge, the Massachusetts governor at the time, took a firm stand, declaring, "There is no right to strike against the public safety by anybody, anywhere, anytime." He sent in 7,000 state militiamen to restore order. To disperse rioters, the state guards shot directly into crowds, killing nine and wounding 23. When order was finally restored, all 1,147 striking officers were fired and replaced.
As Joseph Slater of the University of Toledo College of Law has shown, the strike proved disastrous for police unions and public-sector unions more generally. President Woodrow Wilson called the strike "a crime against civilization." From the 1920s through the 1940s, bipartisan opposition to the unionization of public employees was widespread. State- and local-government workers were not even considered for inclusion in the National Labor Relations Act of 1935 (often called the "Wagner Act"). In a 1937 letter to the leader of the National Federation of Federal Employees, President Franklin Roosevelt bluntly stated that "the process of collective bargaining, as usually understood, cannot be transplanted into the public service" and that strikes by public employees were "unthinkable and intolerable."
It was not until a wave of state legislation in the 1960s and 1970s — which granted state- and local-government employees collective-bargaining rights — that most police officers gained them as well. The transformation was swift and dramatic. Collective-bargaining rights were extended from 2% of the state- and local-government workforce in 1960 to 63% in 2010. The changes in state laws were spurred by President John Kennedy's 1962 Executive Order 10988, which gave federal employees "the right...to form, join and assist any employee organization or to refrain from any such activity."
The new state laws facilitated the conversion of police-officer associations, lodges, and orders into unions. "Hard pressed to defend the invidious distinction between police officers and other public employees on either ideological or political grounds," wrote professor of labor relations Marvin Levine in his history of police unions, "many elected officials realized that it was pointless to resist the rank-and-file demands any longer." The result was the formal recognition of police unions and the extension of collective-bargaining rights to law enforcement in many jurisdictions.
In the 1960s, police associations became more politically active, especially since they were gaining labor rights during a period of urban unrest and public hostility to the police. In a 1977 book, Stanford University political scientist Margaret Levi described police unions as a "bureaucratic insurgency" that overcame police-commissioner opposition in several major cities. In some instances, the unions even served as platforms for launching the political careers of former officers and officials.
POLICE UNIONS AND THE LABOR MOVEMENT
Today, police enjoy collective-bargaining rights in 41 states and the District of Columbia, and union locals are dispersed across the roughly 18,000 police departments nationwide. Only Georgia, North Carolina, South Carolina, Tennessee, and Virginia prohibit bargaining for public employees, while Alabama, Colorado, Mississippi, and Wyoming lack statutes to either advance or oppose police unions. Even where collective bargaining is prohibited, police associations provide members with legal services, political advocacy, and insurance policies.
In terms of raw numbers, the Bureau of Labor Statistics' Current Population Survey found that in 2019, 57.5% of the nation's 712,336 police officers were covered by collective-bargaining contracts, and 55% of officers were union members. In addition, there were 80,802 police supervisors and detectives, 40.6% of whom were union members and 43.3% of whom were covered by union contracts.
Police unions are present throughout the labor movement, but their relationship with it remains tense. Ronald DeLord, a Texas attorney and leading expert on police unions, describes the police labor movement as "a maze of different affiliations." Indeed, police unions are notorious for switching affiliations and shifting back and forth from independent status to affiliation with a larger labor federation. The largest police organization, the Fraternal Order of Police (FOP), boasts some 354,000 members, though it does not affiliate with any of the major labor federations. The second largest is the National Association of Police Organizations, with some 236,000 members. Though independent, it maintains ties to the International Brotherhood of Police Officers, which is chartered by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), to work on federal legislation.
When it comes to organized labor as traditionally understood, only 15% to 20% of law-enforcement employee organizations affiliate with the AFL-CIO. One estimate is that between 100,000 and 150,000 law-enforcement officers belong to locals that affiliate with the AFL-CIO. This helps explain why many police officers don't think of themselves as members of a labor union but instead as part of a lodge or association.
Other major union federations also count police locals among their affiliates. These include the American Federation of State, County and Municipal Employees (AFSCME), which has between 10,000 and 15,000 police members; the Service Employees International Union (over 10,000 police members); the Communications Workers of America (26,000 police members); and the International Brotherhood of Teamsters (15,000 police members).
Bizarrely, if one counts the total number of police-union members reported by the major labor federations, one finds that there are more members than there are police officers in the country. Moreover, not all officers are members of a union. The reason for the discrepancy is that many officers and local unions affiliate with multiple union federations, which is illegal in the private-sector union context. Police unions are also known for inflating their membership figures. A complete picture of police-union membership and their affiliations, therefore, remains elusive.
Today, tensions between police unions and the labor movement are at an all-time high. A threat of expulsion hangs over police unions, as the labor movement has previously excommunicated unions deemed reprobate. (Excluded unions have included those with links to the Communist Party and organized crime, as well as locals that were racially segregated.)
Progressive unionists want police reform — and to distance themselves from unions that oppose such efforts. In fact, after the events of this past spring, several unions sought to excise police from their ranks. The Association of Flight Attendants, for instance, passed a resolution calling on police unions to support reform "or be removed from the Labor movement." A union representing 100,000 workers in Seattle voted to expel the Seattle Police Officers Guild.
Other labor leaders, especially at the national level, are concerned that ousting police unions could set a bad precedent. Patrick Lynch, president of the Police Benevolent Association of New York City, offered the clearest statement of the underlying reasoning for keeping police unions within the house of labor: "The rhetoric that [opponents of police unions] are using now is the same rhetoric that has been used to strip union protections from teachers, bus drivers, nurses and other civil servants across this country." The concern is that if collective-bargaining rights for police unions are constricted, similar arguments could be applied to other public-sector unions.
It is unsurprising, then, that the leaders of several major federations have come out strongly in favor of police unions. AFL-CIO president Richard Trumka favors keeping police unions in the fold. In his view, it is better to keep police unions in the tent and work with them than to push them out and potentially work against them. Instead, he has called for congressional action to prohibit choke holds, expand the use of body cameras, limit no-knock warrants, and prevent the transfer of military-grade equipment to law enforcement.
AFSCME president Lee Saunders, meanwhile, has flatly denied that police-union contracts provide a "shield for misconduct or criminal behavior." He has gone so far as to analogize police unions today to the striking African-American sanitation workers in Memphis with whom Martin Luther King, Jr., was marching when he was shot. As Saunders put it, "just as it was wrong when racists went out of their way to exclude black people from unions, it is wrong to deny this freedom to police officers today."
COLLECTIVE BARGAINING AND POLICE CONTRACT
Like other public-sector unions, police unions influence the structure and operations of police departments in two ways: from the bottom up, through collective bargaining, and from the top down, through political activity.
Collective bargaining concerns the power and interests of workers and management. It gives police unions a hand in shaping the departments in which their members work. By circumscribing the rights of management, police unions partially determine the structure and operation of police bureaucracies.
Labor unions are largely in the business of protecting members' job security and winning members better salaries and benefits. Collective-bargaining statutes applying to state- and local-government employees thus stipulate that agency managers (and elected officials behind them) must negotiate with unions representing those employees over pay, benefits, and conditions of employment. These statutes, along with union organizational incentives like leadership elections, force union leaders to prioritize such issues at both the bargaining table and in political advocacy. And in fact, research finds that collective bargaining tends to increase the pay, benefits, and job protections of public employees who enjoy such rights.
Pay and benefits are not the subject of today's controversies, however. Rather, current concerns focus on the rules inscribed in collective-bargaining contracts negotiated under the rubric of "conditions of employment." In many jurisdictions, these conditions establish disciplinary, grievance, and arbitration procedures for officers accused of misconduct. Such job protections are said to shield incompetent or abusive officers, as union leaders have a legal duty to defend all members equally.
To be sure, many of the protections police unions demand reflect the unique challenges of policing. Given the nature of law enforcement, police necessarily develop a somewhat adversarial relationship with the communities they serve. Officers are sometimes faced with unpleasant, high-tension, and even dangerous situations on the job, and are granted considerable discretion in determining when the use of force is necessary to address them. False or exaggerated citizen complaints are unavoidable. Therefore, labor representatives often prioritize protecting their members against these threats.
These safeguards are especially important to officers insofar as the skills they develop on the job are not easily transferrable to other employment, which makes dismissal especially costly. A recent study of police misconduct by Ben Grunwald of the Duke University School of Law and John Rappaport of the University of Chicago Law School found that in Florida, officers fired from their preceding job find new law-enforcement work at about half the rate of officers who voluntarily leave their preceding job. Moreover, fired officers take longer to find new jobs than those who leave voluntarily, and they tend to go to smaller departments with fewer resources.
Both contractual provisions and state statutes govern officer discipline and misconduct. They generally come in three forms. The first details the steps required to investigate an officer accused of misconduct — sometimes even specifying the way a complaint must be formally lodged. Such provisions stipulate when and where an officer can be interviewed, by whom, and with whom present. Many contracts contain rights to notice of charges, legal representation, a hearing, and appeal, among others. The Chicago police contract states that an interview of an officer "shall be postponed for a reasonable time, but in no case more than forty-eight...hours from the time the Officer is informed of the request for an interview and the general subject matter thereof and his or her counsel or representative can be present." These rules were adopted because requiring officers to make statements on the record forces them, as a condition of their employment, to surrender their constitutional right to remain silent.
Second, labor contracts allow — or even require — the expungement of officers' records of past disciplinary actions or accusations of misconduct. Until this spring, New York state shielded officers' records from the public through a provision in state law. In Cleveland, the collective-bargaining agreement required that disciplinary records be deleted every two years. Baltimore's most recent collective-bargaining agreement states that an accused officer "may request expungement of such matter from any file containing the record of the formal complaint" three years after a complaint is "not sustained" or the officer is exonerated. In Seattle, the contract allows the city to retain files of investigations that result in a "sustained" finding of misconduct for the duration of the officer's employment. Files of investigations that are "not sustained" can only be retained for three years.
Third, grievance and arbitration rules spell out how an officer (and his union representative) can challenge an adverse personnel action by a superior — including re-assignment, suspension, transfer, or firing. If a sergeant disciplines an officer, the officer or his union representative can appeal to a lieutenant, and so on up the chain of command. If the matter remains unsettled, it can be appealed to binding arbitration. The Chicago FOP's website offers members instructions for filing grievances, recommending that officers file as soon as possible. It also provides a template for filing, reminds officers to maintain supporting documents that strengthen their case, and outlines the supervisor-response process. Any non-binding mediation that follows can be forwarded to an arbitration hearing. Arbitrators are empowered to order re-instatement and back pay for officers found guilty of misconduct.
The use of arbitration can limit officer accountability. Unlike court proceedings, arbitration is typically conducted behind closed doors. Additionally, unions have significant influence over the selection of arbitrators. Some agencies list acceptable arbitrators in the appendix to the union contract; others allow the National Academy of Arbitrators or similar organizations to submit a list of prospective arbitrators. The union and city then, in a process akin to jury selection, alternatively reject arbitrators until one remains. Arbitrators also have an incentive to be police-friendly — if they discipline too many officers, they risk not being chosen in future cases. Furthermore, in arbitration cases, legal technicalities related to procedure often overshadow the substance of the complaints against officers.
Other contractual provisions also constrain management. For instance, contracts typically promulgate seniority rules, whereby officers are assigned duties based on time on the job. This means that police chiefs cannot assign particular officers to patrol particular areas at particular times of day. Consequently, the least experienced officers are often assigned to patrol the toughest neighborhoods during times of peak criminal activity.
Given the stakes, police unions have also sought to advance their members' occupational interests from the top down through political activity. Like other public-sector unions, they spend tens of millions of dollars annually on lobbying and electioneering. According to an investigation by the Guardian, police unions in Los Angeles, New York, and Chicago alone spent a combined $87 million over the last decade on state and local politics.
Police unions are politically unique in two respects. First, their political activity differentiates them from police unions or federations in other countries — such as Canada, Australia, and England — where police unions are limited or barred from involvement in election campaigns.
Second, police-union political spending tends to be more bipartisan than that of other public-sector unions. Their behavior is more akin to that of craft unions than teachers' unions — the latter of which, according to the Center for Responsive Politics, typically give over 90% of their campaign contributions to Democratic candidates for federal office. By contrast, the National Institute on Money in State Politics found that police unions and associations gave $10.2 million to candidates and parties at all levels of government in 2018, of which 61% went to Democrats and 39% went to Republicans.
Democrats enjoy a slight edge in police-union campaign contributions because they are generally friendlier to organized labor than are Republicans. Democrats are also the dominant party in most of America's largest cities with the largest police forces. Baltimore, Chicago, Minneapolis, Oakland, San Francisco, and many other cities have not elected a Republican mayor in decades. Bearing in mind that political appointees negotiate, and mayors sign off on, every collective-bargaining agreement, it is one of the great political Houdini acts that Democrats have largely escaped blame for being unable or unwilling to bring their police departments to heel.
Bestowing or withholding endorsement of political candidates is another way police unions wield political influence. Few candidates want to be labeled "soft on crime," and a police-local endorsement is often helpful in shoring up a candidate's law-and-order bona fides. Not only does the endorsement carry signaling value to voters, it can also serve as a seal of approval in the eyes of other potential endorsers or donors. As with campaign contributions, police endorsements tend to be more bipartisan than, say, the endorsements of the teachers' unions. The FOP, for instance, refused to endorse Mitt Romney for president in 2012 but endorsed Donald Trump in 2016. Michael Zoorob of Harvard University found that FOP support "contributed to a significant swing in vote share from Romney to Trump" in key states.
Playing political hardball at election time is fairly standard for police unions. The Houston police union bought ads warning about rising crime and pressing for more officers to be hired. To pressure city councils and state legislators, other unions have stretched the limits of propriety and legality. The Costa Mesa Police Association hired a law firm and private investigator to conduct opposition research and pressure city-council members in the run up to the 2012 elections. Extensive harassment of city counselors ensued, such that the union and the law firm later settled out of court charges of assault, intimidation, and defamation for some $600,000.
When it comes to disciplinary procedures, some police unions have used their political muscle to place some of these job protections on firmer legal footing than collectively bargained contracts. Sixteen states have enacted law-enforcement officers' bills of rights (LEOBRs), which lay down internal investigatory and disciplinary procedural protections for officers greater than those afforded to other government employees through civil-service laws.
Many existing and proposed LEOBR provisions are reasonable, such as the prohibition against threats, harassment, or promised rewards to induce answering of questions, as well as the right to a hearing with the assistance of counsel. But other provisions are less so. University of Nebraska law-enforcement expert Samuel Walker and Kevin Keenan of the Vera Institute found that some LEOBRs delay interrogation of those involved in alleged misconduct. In Delaware, officers have access to evidence related to the investigation, giving them the opportunity to get their story straight. Rhode Island's LEOBR entitles officers to a hearing by a three-member panel of active officers, one of whom is selected by the charged officer.
Police unions have also shaped policies regarding citizen oversight of the police. Until George Floyd's murder, police unions in New York successfully blocked efforts to repeal the state law that shielded police-misconduct records from the public. Police unions have also challenged the legitimacy of transparency measures such as civilian review boards and police auditors, all while advising officers not to cooperate with them and seeking legislative repeals. In Newark, New Jersey, the local FOP lodge challenged the legitimacy of a newly-established citizen review board in court, arguing that any officer oversight should be conducted within the police department. In 2019, FOP Lodge No. 7 sued the city of Chicago, alleging that a civilian review board violated Illinois's Police and Community Relations Improvement Act by failing to use state-certified homicide investigators to investigate police shootings.
What have been the policy consequences of police-union power at the bargaining table and in the political arena? The truth is that we don't know as much as we should. Scholarship on police unions is in short supply and varies in quality. A 2004 National Academy of Sciences report on American policing contains nary a mention of them. By one count, there were only 33 scholarly publications on police unions between 1975 and 2008. By my own tally, since 2014, there have been 25 scholarly articles, mostly in law reviews, on the topic. More research is needed on the effects of police unions on many outcomes, including police use of force, police-community relations, and more.
That said, the small body of literature on the impact of police unions is unequivocal in finding that they negatively affect a host of outcomes, including organizational modernization, accountability, officer use of force, and police-community relations. Yet strong police unions don't always correlate with bad outcomes. The New York City Police Department is represented by a strong union, but it is among the least violent police departments in the country's hundred largest cities.
Broadly speaking, the deleterious effects of police unions are said to be threefold. The first is that they facilitate a culture that harms police work and community relations while frustrating reform efforts. Union culture, it is said, encourages good officers to defend bad officers by maintaining the "blue wall of silence." In Chicago, a task force appointed by then-Mayor Rahm Emmanuel concluded that "the police unions and the City have essentially turned the code of silence into official policy." In addition, the vigorous public defense of officers accused of misconduct by police-union leaders — a task central to their job — can foster the perception that leaders are uninterested in better policing and indifferent to victims of police abuse.
Second, state laws and union contracts themselves are believed to make it very difficult to fire officers accused of misconduct. Loyola University of Chicago law professor Stephen Rushin found that most police departments afford multiple levels of disciplinary appeal — some departments have six or more appeals levels in addition to external arbitration.
Such policies explain why so many officers dismissed for misconduct are re-instated. A 2017 Washington Post investigation found that in Washington, D.C., "[forty-five] percent of the officers fired for misconduct from 2006 to 2017 were rehired on appeal. In Philadelphia, the share is 62 percent. In San Antonio, it's 70 percent." Mind-bending stories of cops abusing citizens and retaining their jobs through arbitration are legion. Among the most notorious is the case of Hector Jimenez, an officer in Oakland, California, who killed two unarmed men in a seven-month period — shooting one of them in the back three times. The city of Oakland fired Jimenez and paid a $650,000 settlement to one victim's family. However, Jimenez appealed to an arbitrator through his union and was re-instated with back pay.
Such contractual rules hamstring police chiefs' ability to supervise and manage their forces effectively, as it is difficult to discipline officers who are the subject of many complaints. According to the Post, a 2006 Bureau of Justice Statistics report found that "officers in unionized police forces are more likely to be the subjects of an excessive-force complaint, but more likely to beat the allegations in disciplinary hearings." A few bad officers can wreak havoc on police-community relations. Even if police chiefs know who the bad apples are, they find themselves powerless to do anything about them until something horrible happens. Firing an officer after a tragic incident is cold comfort.
Furthermore, police chiefs cannot effectively manage their workforce if disciplinary records are regularly destroyed. Without records, new police chiefs have little idea who they are dealing with. This is especially true for job seekers who come from other police departments.
Third, union protections are believed to allow officers to act with greater impunity. In a 2018 article, Dhammika Dharmapala, Richard McAdams, and John Rappaport of the University of Chicago Law School found that, in Florida, "violent misconduct among sheriff's officers increased about 40 percent after a state supreme court ruling allowed the offices to unionize." A working paper by economists Rob Gillezeau, Jamein Cunningham, and Donna Feir, which attracted much press attention but is not publicly available, reportedly found that "after officers gained access to collective bargaining rights...there was a substantial increase in killings of civilians." When abusive officers remain on the job, the likelihood that citizens will have negative interactions with them increases — at times leading to disastrous consequences.
Proposals to reduce job protections for officers and to weaken police-union power abound. At the federal level, Congress has considered rescinding qualified immunity — a legal doctrine that bars government officials from being held personally liable for constitutional violations — for law enforcement. At the state level, some suggest opening collective-bargaining negotiations with police unions to public oversight. Others recommend giving community groups a seat at the bargaining table. Leading law professors advocate terminating exclusive representation for police and instituting management negotiations with multiple labor representatives. This includes Benjamin Sachs of Harvard Law School, often considered the dean of labor-law scholars, who supports amending state statutes to limit the subjects of police bargaining to pay and benefits so that disciplinary procedures can no longer be subject to negotiation.
Policy changes are already making their way through state legislatures. In June, Oregon passed measures requiring officers to report misconduct by their colleagues and limiting arbitrators' discretion in overturning disciplinary action taken against officers. The following month, over the opposition of the state's police unions, Connecticut passed a bill setting a higher threshold for the legitimate use of deadly force, requiring officers to intervene if another officer uses excessive force, allowing cities to create civilian review boards, and permitting people to sue individual officers for misconduct. Although limits on collective bargaining over disciplinary procedures were reportedly debated, they did not make it into the final bill. The law does, however, include greater transparency provisions, allowing Freedom of Information Act requests to prevail over collective-bargaining agreements and invalidating provisions in collective-bargaining agreements that prohibit disclosure of disciplinary records.
The current reform debate hinges on the idea that reducing job protections for police officers will allow police chiefs to dismiss misbehaving officers and spur those who remain on the beat to be more circumspect and less likely to use force. Perhaps that could happen. But the multiple overlapping job protections, along with a police culture that protects officers, means that reforms to any single area are not likely to produce dramatic change. The dispersal of political authority means that no entity can effect all these changes at once. Federal and state laws, local ordinances, department policies, and more would need to change, which is unlikely to happen in today's political environment.
We should also have modest expectations regarding whether reforming job protections for police by itself will improve relations between police and minority communities. As many observers have stressed, racial disparities in policing often reflect different rates of crime among America's racial groups. Reforms in labor relations are thus likely to have limited utility as a method of dramatically altering racial disparities in policing.
The same is true of the lethal use of force by law enforcement. In absolute terms, the number of these incidents is already relatively low — last year, according to the Post, police officers fatally shot 999 people nationwide. In terms of racial breakdown, 250 of these individuals were black. Fifteen of those fatally shot were either unarmed or their status was listed as "unknown." To be sure, each one of these deaths is a tragedy; everyone would like to see those numbers — which have held fairly steady over the last few years — fall. But in a nation of 330 million people, where millions of arrests occur each year, how much more can policy changes — much less labor-law policy reforms — realistically push them down?
Racial disparities in non-lethal use of force — with blacks more likely to endure police force than whites — present a much more widespread problem than lethal use of force. Evidence also suggests that black individuals are more likely than whites to be pulled over while driving and stopped, questioned, and perhaps frisked on city streets. Yet it is unclear how much reducing officer job protections or requiring more public scrutiny of officers' records can reduce racially disparate uses of non-lethal force or questionable stops. It may be that more tactical training and better training in de-escalation techniques will help as much, or more than, union reform in addressing these issues.
In addition to tempering expectations, policymakers and the public should also be aware of the negative consequences that police reform may usher in. One danger associated with all police-reform efforts, including changes to job protections, is that officers may withdraw from enforcing the law out of an excess of caution for their own careers. If this happens, crime and disorder are likely to spread. In a study of Justice Department pattern-or-practice investigations of local police departments, Harvard economist Roland Fryer found that when investigations were preceded by a controversial viral video involving police, officers pulled back, and crime rates increased. While police strikes are illegal, job actions — such as work slowdowns or cases of "blue-flu" — can significantly reduce police activity. If cops feel legally exposed and under assault from the public, arrests may fall and crime may spike. According to a Wall Street Journal analysis, the nation's 50 largest cities have already experienced a 24% increase in murders this year.
Yet another possible effect of reducing police job protections may be to make officer recruitment more difficult. Even before the events of this spring and summer, police chiefs were speaking of a "crisis" in recruitment. A survey last year by the Police Executive Research Forum highlighted a decrease in applications, an increase in early exits, and increased retirements. Absent other measures to offset lost job protections, the pool of potential police officers may shrink further, or its quality may decline. The unintended result might be to decrease rather than increase departments' human capital.
All told, police unions and the disciplinary procedures and job protections they advocate are a complex, nettlesome ensemble of policies. Their impact on police-department culture, policing, and community relations is not well understood or well studied. As reformers march into this area, they will be navigating largely uncharted territory. They would do well to adjust their expectations accordingly.
This piece originally appeared at National Affairs
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