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Cities, States Prevail in Early Legal Clashes With Police Unions

Nov. 18, 2020, 10:31 AM

Cities and states responding to nationwide protests sparked by George Floyd’s killing have begun trying to root out barriers to police accountability embedded in union contracts—and the first federal courts to weigh in are signaling the efforts could work.

Three courts in recent months have rejected initial police union challenges to measures that effectively invalidate or strip discipline rules in collective bargaining agreements.

The most significant could be in the District of Columbia, where U.S. District Judge James Boasberg dismissed the Fraternal Order of Police’s constitutional challenge to a law that eliminates all police discipline from collective bargaining. The judge turned aside the union’s equal protection claim, finding the city’s law rationally related to its interest in promoting police accountability.

Boasberg said collective bargaining has never been recognized as a fundamental constitutional right protected by substantive due process.

The city’s effort to end contractual obstacles to accountability could become “a blueprint” for changing police departments nationally, said John Rappaport, a University of Chicago criminal law professor.

But William Jones, a University of Minnesota history professor examining police collective bargaining and violence for a project at Harvard University’s Labor and Worklife Program, called it a “very, very dangerous precedent to allow city administrators and elected officials control over the disciplinary process without any input from employees.”

Eyes on States

Oregon and Connecticut also this year passed novel measures to eliminate discipline-related provisions in collective bargaining agreements, major victories for Black Lives Matter activists who say union agreements too often shield officers accused of lethal misconduct from accountability.

In Connecticut, a federal judge last month refused to halt a state law that nullifies contract-based restrictions from releasing officers’ disciplinary records. The Oregon law hasn’t faced legal challenge as of yet; voters in Portland separately approved a ballot measure this month that gives an independent commission authority to discipline and even fire officers.

A New York federal judge in August mostly rejected a union bid to block a New York City plan to make a publicly available database of police, firefighter, and correctional officer discipline. That was made possible after the state Legislature’s June repeal of a ban on releasing their personnel records. Unions have appealed the ruling.

Several other states may consider paring back discipline provisions in police union contracts when their legislatures convene in 2021.

While too early to say how other courts might rule, Carl Takei, a senior attorney with the American Civil Liberties Union, called the decisions so far “a pendulum swing back to making police officers subject to rules that are similar to other public employees accused of misconduct.”

And the decisions “suggest the legislatures are in a strong position to act this way, if they choose to go in that direction,” said Alexander Colvin, a labor law professor at Cornell University. “If the police want to resist these, they need to do it through the political process more than through the courts.”

‘Low-Hanging Fruit’

Activists, attorneys and academics say rolling back officer-friendly disciplinary procedures and rights is crucial to achieving meaningful changes to police practices, while law enforcement unions say they’ll continue to fight legislatively and legally.

“Some of the low-hanging fruit—requiring body cameras, getting rid of no-knock warrants—have been passed,” said Rashawn Ray, a University of Maryland sociology professor who’s testified at Maryland and Virginia’s legislatures on ways to make police less dangerous to citizens. “But a key question is whether we’re talking about police reform that increases accountability, or are we just checking boxes?”

Police contracts sometimes contain provisions calling for arbitrations to adjudicate misconduct, special access to information about evidence and witnesses, and extended “cooling off” periods that give officers accused of legal misconduct a chance to review video footage and confer with lawyers and union officials before being questioned for potential criminal charges.

“That’s not the kind of protection that ought to be given to, especially, public officials who have the kinds of powers that police officers have,” the ACLU’s Takei said. “It’s certainly not a protection that we afford to any regular citizen accused of shooting somebody.”

Such protections also can appear outside a union contract and would not be changed by these court rulings, including those embedded in police “bill of rights” laws in 20 states.

State Actions

Police officers’ union rights vary by state. Georgia, North Carolina, South Carolina, and Tennessee expressly forbid police collective bargaining, while Virginia passed a law this year that will give police officers collective bargaining rights effective in May.

The Oregon measure calls on police departments and unions to agree on a “matrix” of punishments for various offenses. It also aims to make it more difficult for discipline to be reduced or overturned in arbitration.

Connecticut’s law voiding contractual restrictions on releasing officers’ disciplinary records survived an early test last month, when U.S. District Judge Charles Haight rejected the Connecticut State Police Union’s bid for a preliminary injunction to block the law.

The suit sought to halt a provision that made police officers’ disciplinary records available to the public. The union argued that the state—its employer—didn’t have authority to nullify parts of the current collective bargaining agreement, which kept complaints sealed in cases where allegations against an officer couldn’t be substantiated.

The union didn’t show that it was likely to prove the law violated the U.S. Constitution’s protections of contracts, which requires proving the statute wasn’t reasonable to boost law enforcement accountability and transparency, Haight said. The judge last week refused to block the law while the union appeals his ruling.

If the U.S. Court of Appeals for the Second Circuit finds that the Constitution doesn’t protect the CBA’s provision on prohibiting the release of unsubstantiated complaints against officers, then any other law nullifying a contractual protection would survive constitutional scrutiny, predicted Proloy Das, an attorney with Murtha Cullina who represents the union.

“Police collective bargaining has been unfairly portrayed as an impediment,” said Larry Dorman, a spokesman for AFSCME Council 4, which represents 2,000 local police officers in Connecticut. “Collective bargaining is never the impediment that its critics make it out to be.”

Council 4 now says it will ask the Legislature to roll back certain parts of the law, but hasn’t taken the idea of filing its own suit off the table. While the union is open to certain changes involving body cameras and implicit bias training, it wants lawmakers to remove a provision that would allow felony charges for police officers who fail to report excessive force by colleagues, said Troy Raccuia, the collective bargaining director for Council 4.

The union also objects to a provision that prevents officers from having punishments overturned through arbitration, a change that activists say is long overdue.

Public-Sector Concerns

D.C.’s law gives city administrators the power to unilaterally rewrite the disciplinary procedures for police officers. The police union’s contract with the city expired Sept. 30.

The district court ruling that upheld the law isn’t good for public employees broadly, said Jones, the University of Minnesota professor. It echoes a decision upholding Wisconsin’s 2011 law gutting collective bargaining rights for government workers, he said.

At the same time, having unique standards for police isn’t a new concept, making it less likely that the strategy will spill over to other sectors, said Colvin, the Cornell labor law professor.

“There’s always fairly different rules governing police,” Colvin said.

Limitations

Rolling back protective disciplinary procedures found in union contracts could be an effective means of reducing police misconduct, but it’s no sure thing, said Catherine Fisk, a workplace law professor at the University of California-Berkeley.

Success depends in part on the state. In California, for example, various protections found in union contracts are also codified in the state’s law enforcement officer bill of rights and civil service laws, said Fisk, who’s written about union bargaining and police misconduct.

Boosting accountability also hinges on the cooperation of police department management, Fisk added.

“A lot of the public debate about police unions and police reform assumes the union is the problem, so if you get rid of it, then management will discipline cops for excessive force on discriminatory conduct,” she said. “Evidence suggests that police department management has not always been so eager. You have to be sure management really wants to discipline cops and make it stick.”

—With assistance from Andrew Wallender

To contact the reporters on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com; Karl Hardy at khardy@bloomberglaw.com

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