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D.C. Police Reform Faces Union Challenge at U.S. Appeals Court

Feb. 2, 2022, 11:05 AM

A federal appeals court will consider a police union’s constitutional challenge to a District of Columbia measure prohibiting the union from negotiating over disciplinary rules, one of the significant reforms that followed the nationwide protests sparked by the 2020 murder of George Floyd.

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument Wednesday over a law that reserved all police disciplinary matters to the district and blocked the Fraternal Order of Police from addressing discipline in future collective bargaining.

The case could decide the fate of D.C.’s innovative reform initiative that’s designed to tear down barriers to police accountability that are often found in union contracts.

Commonly found contractual provisions that can interfere with accountability include mandatory waiting periods before an officer is interviewed, the right to choose members of the board that assess misconduct allegations, and access to relevant evidence and reports before an officer’s interview, said Josh Parker, an attorney with the Policing Project at New York University School of Law.

D.C. enacted a broad set of police reforms in July 2020—including restrictions on neck restraints and the establishment of a commission on reforms—two months after then-Minneapolis police officer Derek Chauvin murdered Floyd. It also contained the measure blocking union negotiations on discipline.

That change is a “meta reform” that, rather than proscribing a specific policy, responds to the district’s view that the union has distorted disciplinary rules through collective bargaining, said John Rappaport, a University of Chicago law professor who researches labor issues in law enforcement.

“This law in D.C. is really the goal, which is to sideline the police unions and reduce their power with respect to disciplinary policies,” he said.

A D.C. Circuit panel of Judges Judith Rogers, Patricia Millett, and Gregory Katsas will weigh the Fraternal Order of Police’s arguments against the district’s law. Rogers is a Clinton appointee, Millett an Obama appointee, and Katsas a Trump appointee.

As in the nation’s capital, some police unions have gone to court to fight back against city and state reform measures.

The Second Circuit in March mostly rejected a cop union bid to block New York City’s plan for a public database of public safety officer misconduct. That circuit also heard oral argument in October over a Connecticut State Police Union’s effort against a law that nullifies contract-based restrictions from releasing officers’ disciplinary records.

‘Reactionary Concession’

The Fraternal Order of Police, which claims it has more than 350,000 members, represents D.C. police through one of its affiliates. The union sued D.C. in federal court over its law blocking it from negotiating over discipline, saying it discriminates against police by making them the only district employees stripped of that particular bargaining right.

The union also characterized the law as a “deliberate and reactionary concession to anti-police rhetoric and protests being carried out by a small number of citizens, many of whom are not even District residents.”

The law violated the equal protection, bill of attainder, due process, and contract clauses of the U.S. Constitution, the union said in its August 2020 lawsuit.

U.S. District Judge James Boasberg, an Obama appointee, dismissed the union’s lawsuit in November 2020.

Contract Clause

The Fraternal Order of Police affiliate led with its contracts clause argument in its brief to the D.C. Circuit. The bargaining restriction substantially impairs the labor contract between the union and the police department, in violation of the Constitution’s protections for contractual rights, the union said.

“Indeed, the ability to bargain over discipline is such a core tenet of collective bargaining that without it, there is no bargaining right conferred at all,” the union said. “That is why discipline has been recognized as a mandatory subject of bargaining under the National Labor Relations Act.”

But the D.C. attorney general’s office said the union’s contract clause argument fails because that part of the constitution doesn’t protect expectations about future contracts. The law avoids interfering with pre-existing contracts by only applying to agreements between the police department and the Fraternal Order of Police after September 2020, district lawyers said in their brief.

The union and the police department agreed before September 2020 to renew their collective bargaining agreements for one year.

“To state a claim under the Contract Clause, FOP must therefore identify a CBA provision that continued after October 1, 2021, that was impaired,” district lawyers said.

The D.C. attorney general’s office declined to comment. The union’s lawyer, Anthony Conti of Conti Fenn LLC, didn’t respond to requests for comment.

The case is Fraternal Order of Police v. DC, D.C. Cir., No. 21-07059, oral argument 2/2/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com