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Cops’ Legal Cover Is in Question as States Agonize Over Reforms

Aug. 6, 2020, 9:45 AM

Before Minneapolis police officer Derek Chauvin killed George Floyd by kneeling on his neck for nearly nine minutes, he had faced 17 complaints regarding his behavior with only one ending in any sort of disciplinary action—and that was a reprimand.

Chauvin was protected by Minnesota’s “Peace Officer Discipline Protection Act,” which provides special rights for cops accused of bad behavior.

Minnesota is one of at least 20 states with “law enforcement officers bill of rights” laws on the books, pushed by powerful police unions. Many were sponsored by former and—in at least one case—current police officers, and authors of the laws rake in large political contributions from unions.

The laws make it difficult to adequately discipline or remove officers accused of misconduct by creating a separate set of rights and rules not granted to any other public sector union members, critics say. Police unions say officers deserve protections from unfair allegations of misconduct and second-guessing while making life-and-death decisions on the street.

Floyd’s death, and the reckoning with racial justice across the U.S. in its wake, is buoying some states’ efforts at reforming those laws. Maryland and Rhode Island are working to roll theirs back.

“In the last month, it’s like a sea change,” said Stephen Rushin, a professor at Loyola University School of Law Chicago, who is an expert on police accountability. “This could be an inflection point.”

But for serious policing reforms to be approved, lawmakers will have to resist powerful police unions, overcome potential conflicts created by their donations, and withstand accusations of being considered “soft on crime.”

‘Most Decorated Officer’

Unlike private unions, which are regulated by the federal government, public sector unions are controlled at the state level.

“State legislators are highly relevant and so are local governments,” said Marcia McCormick, a professor who teaches criminal law at St. Louis University. State legislatures are usually what decides which organizations can bargain and what they can bargain over, she said.

The late congressman Rep. Mario Biaggi (D-N.Y.) first pushed for special rights for police in the 1970-1971 legislative session. Biaggi, reportedly the most decorated officer in the history of the New York City Police Department, was wounded 10 times during his 23 years and a staunch supporter of his former profession.

He later resigned from Congress amid corruption scandals and was sent to prison. He died at age 97, still professing his innocence. His bill never made it into law, despite several efforts to pass it by others, including Democratic candidate for president and former Vice President Joe Biden.

The national Fraternal Order of Police has long supported a national bill of rights law, noting that law enforcement officers are “held to a much higher standard of personal and professional conduct” and this “increased visibility renders police officers vulnerable to false accusations from the criminal element and others in society whose sole motivation in making these allegations is to disrupt law enforcement activities.”

The laws are also meant to ensure swift investigation of police so that inquiries don’t drag on for years and put an officer’s career on hold, according to Donovan Livaccari, a Louisiana-based attorney who represents law enforcement officers in administrative proceedings.

“The law was developed to provide some basic protection for officers and protect them from potential abuses,” Livaccari said of Louisiana’s law. “It doesn’t develop a right to be coddled.”

While efforts to get a law through Congress failed, Florida and Maryland passed them in 1974 and a host of other states followed suit in ensuing decades. Alabama and Texas have limited officer protections that bear some resemblance to the bills of rights in other states. Cities and localities can also enact protections for officers through legislation and collective bargaining agreements.

The Florida law was authored by a homicide cop and a state Fraternal Order of Police president from Miami named Tony Fontana, who died in 2010. He was the first lawmaker in Florida to serve as both a legislator and a police officer at the same time, according to his obituary.

Some Laws ‘Go Too Far’

Many of the provisions in the laws are fairly benign. Officers, for example, are entitled to adequate bathroom breaks during questioning and to have those interrogations occur during regular work shifts. Others are more problematic, Loyola’s Rushin said.

He’s critical of laws that can “unreasonably” limit civilian oversight, prevent the questioning of officers close in time to an allegation of misconduct or mandate the purging of disciplinary histories.

“Some parts of state law enforcement officer bills of rights go too far and should be repealed,” he said. “Due process is important. I just think that due process should be a shield against harmful tactics by management, not a sword to fight off reasonable investigations and oversight.”

Delays in interrogation of police following incidents, for example—currently the law in seven states—have faced criticism over the years, including in a 2005 a Public Interest Law article, where Kevin M. Keenan and Samuel Walker called them out as “intolerable.”

“There is a widespread impression that delays in investigations allow officers time to collude to create a consistent, exculpatory story,” they wrote.

Louisiana allows officers up to 30 days to obtain representation in investigations before questioning can begin. That timeline shrinks to 14 days when there’s an “officer-involved incident” such as a shooting.

Legislators included the provision out of concern that officers in more rural parts of the state could have a harder time getting a lawyer, said Livaccari, who is also an Fraternal Order of Police member and former police officer.

Maryland and Freddie Gray

The Maryland law, which granted officers 10 days before they were required to submit to any interrogation, later cut to five days, came under fire with the death of Freddie Gray in police custody in 2015.

Efforts to change the law resulted in modest reforms. Overseeing the effort were then-Senate President Thomas V. Mike Miller (D-Calvert) and House Speaker Michael E. Busch (D-Anne Arundel), now deceased, the top two recipients of police union contributions in the state since 2000, both drawing more than $40,000 according to data from the National Institute on Money in Politics.

Del. John Cluster, at the time said it didn’t make sense to require a civilian to sit on a disciplinary board for police. “Policing is a unique thing.”

Cluster is third on the union donation list, with more than $38,000. He is also a former Baltimore police officer and FOP Lodge No. 4 member, has been honored as the legislator of the year by the group “several times” and has received campaign contributions from the group’s political action committee.

Attempts to reach Miller, who stepped down from the Senate presidency last year due to health concerns, but will serve out his term, and Cluster, now on the Maryland Parole Commission, were unsuccessful.

The killing of George Floyd sparked a flurry of reform measures, according to the National Conference of State Legislators.

At least 395 bills related to policing were introduced in 30 states and the District of Columbia this year, according to a database of such legislation. Thirty-four bills related to police reform—8.6% of the bills in the database—were enacted.

Citizen Legislators

In a country where most state lawmakers have other jobs, the perception that they’re unduly influenced by previous or current employers can be problematic.

“If a former police officer turned lawmaker sponsors legislation that reduces civilian oversight of law enforcement, he or she needs to be mindful of the optics,” said Edwin Bender, executive director of the National Institute on Money in Politics. “That just looks like they’re trying to protect their buddies. And given the current climate in the country, with officers on trial for abuse of power and murder, that could be explosive.”

The interrogation delays aren’t the only issue. In Maryland, officers have the right to have a complaint expunged from their file after three years—even if the complaint was substantiated. Nine states restrict when a complaint can be filed, how soon a hearing must take place, or how long an agency has to administer discipline.

And 10 states have language that could lead to disclosure of complainants before the officer can be questioned.

While “the right to confront witnesses against oneself is crucial to a fair trial,” these laws “do not adequately address or deal with the potential for officers to intimidate and retaliate against complainants,” wrote Keenan and Walker.

In Illinois, the interrogation of an accused officer can’t happen until he or she is informed in writing about what’s being investigated and who complained. Democratic Rep. Michael Madigan—who was among the sponsors of the police bill of rights in 1983, eventually became Speaker of the House, and is one of the state’s most powerful politicians—received more than $132,00 in contributions from police unions.

Madigan couldn’t be reached for comment for this story.

Chance to Change

Newly established commissions in Maryland and Rhode Island are actively reviewing their states’ bill of rights laws.

It’s the first shot at substantial reform in years with one member of Rhode Island’s task force recommending during the group’s first meeting July 22 that the body “immediately repeal” the protections and start from scratch.

A proposed Rhode Island bill would overhaul existing protections in part by allowing police chiefs to suspend an officer up to 30 days without pay before being bound by restrictions in the bill of rights, such as review by a hearing board. The law currently allows for two days’ suspension without pay before the discipline must be subject to the bill of rights.

“There’s intense public interest,” said Samuel Walker, Emeritus Professor of Criminal Justice at the University of Nebraska at Omaha, who co-authored the study on bill of rights laws.

Minnesota’s police discipline law is unusual in that it contains a provision that specifically limits the powers of civilian review boards.

Eleven of the 18 sponsors of the oversight provision received donations from police unions, according to a Bloomberg Law review. Sponsors included five former law enforcement officers. One was John Harrington, the former chief of police of the city of St. Paul (now the state’s commissioner of public safety), a retired 32-year police veteran, and a retired county sheriff.

The commission’s press office did not respond to requests seeking comment from Harrington.

“This statute sets off peace officers in a separate category in terms of due process in disciplinary proceedings,” said Teresa Nelson, ACLU of Minnesota legal director.

The legislation was used as justification for public officials to do away with a previous civilian oversight board and replace it with one that is controlled by police members, according to Michelle Gross, co-founder of Communities United Against Police Brutality, a Twin Cities-based advocacy group.

Since then, there have been 3,113 complaints by civilians, with 13 resulting in discipline, Gross said. That’s a 0.42% rate, when the national average for civilian oversight bodies is between 7% and 8%.

After much debate, the Minnesota Legislature passed a reform bill that was signed into law by Democratic Gov. Tim Walz. The new law restricts police use of chokeholds and neck restraints, bans departments from offering warrior-style officer training and changes a state arbitration process that officers use to contest discipline, among other issues.

The bill was a compromise between the Democratically controlled House and the Republican-controlled Senate and passed easily in both chambers.

The much-tougher state House bill as introduced, included a provision that would replace the civilian oversight board language with citizen oversight councils with the power to “make a finding of misconduct and recommend appropriate discipline against peace officers employed by the agency.”

The bill also said the council “may subpoena or compel testimony and documents in an investigation. Upon completion of an investigation, a council may make a finding of misconduct and recommend appropriate discipline against peace officers employed by the agency.”

The section was not included in the final legislation.

“Civilian oversight was not addressed at all in the legislation that was passed,” Gross said. “Other than a ban on warrior training, it was about the most anemic thing you can imagine.”

—With assistance from Aaron Kessler.

To contact the reporters on this story: John Dunbar in Washington at jdunbar@bloomberglaw.com; Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: Cesca Antonelli at cantonelli@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergtax.com

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