Welcome back to What Went Wrong?, a newsletter about the failures, inefficiencies, and screw-ups that define 21st-century American life written by Harry Cheadle.
Can’t we just… get rid of the bad cops?
Photo of a creepy cop statue by Flickr user Rich Brooks
In the wake of the killing of George Floyd and the world-shaking protests that have followed, there’s been a spirited public debate about how American policing should change. On the moderate end of the spectrum, a group called 8 Can’t Wait has pushed a series of reform measures that would limit police officers’ ability to use force, for instance by banning them from firing at moving vehicles. Those who favor abolishing rather than reforming the police have argued that a lot of police departments already have those rules in place, and those departments still routinely commit brutality against citizens.
One reason these well-intentioned rules haven’t ushered in much change is that ultimately, a lot of them are toothless, because cities find themselves unable to fire cops for breaking those rules. Abolish the police? In America, we can’t even figure out how to fire the police who exhibit truly abhorrent behavior.
Derek Chauvin, the former Minneapolis officer who killed George Floyd and had compiled 18 complaints against him in a 19-year career, is only the latest notorious example of an evidently out-of-control cop retaining a job far longer than he should have. And the problem lies partly with police unions.
How unions protect cops
I want to pause here because I don’t think a lot of people are familiar with what unions do. Only around 10 percent of American workers are union members, a figure that has been declining for years (in part because right-wing politicians have worked hard to destroy unions, a traditional source of Democratic strength). U.S. workers tend to be “at-will” employees, meaning they can be fired at any time for any reason, or no reason at all. (The potential for wrongful termination lawsuits means that most competent companies try to have a documented reason for firing someone.)
When a union bargains with an employer on behalf of its members, using the threat of a strike or other collective action as leverage, it typically wants to make it harder for management to fire workers in the name of giving them security. One common protection in union contracts is called “just cause” termination, which is more or less what it sounds like: an employer has to have a reason to fire a worker.
I know a little bit about this because when I worked for VICE I helped unionize some of the editorial staff under the Writer’s Guild of America East and was on the bargaining committee that negotiated the first union contract with management in 2016. I remember some employees had concerns that a union would make it too hard to fire bad workers—if someone was being lazy or screwing up or creating a toxic environment, we didn’t want the union to protect them. Though we got just cause language in the contract, the committee didn’t fight too hard for strict protections against firings; other contracts negotiated by the WGAE at that time had no just cause at all, because union members didn’t want it.
Police unions, on the other hand, have tended to emphasize very strong employment protections, even for officers accused of misconduct. In other words, they’re not concerned at all about getting rid of “bad apples.” They’ve tried, often successfully, to put in place a set of restrictions on how allegations are investigated and whether complaints are open to the public. In some states, police unions have convinced legislatures to pass what is called a “Law Enforcement Bill of Rights.” Here’s how a 2012 Reason piece described these protections for an officer who has a complaint filed against them:
Unlike a member of the public, the officer gets a "cooling off" period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated "at a reasonable hour," with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only "for reasonable periods," which "shall be timed to allow for such personal necessities and rest periods as are reasonably necessary." Unlike a member of the public, the officer under investigation cannot be "threatened with disciplinary action" at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.
What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by "non-government agents," which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer's legal defense.
A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.
Even in places where those protections are not written into law, they may be included in a police union contract. In 2017, law professor Stephen Rushin looked at 178 of these contracts and found that around 88 percent “contained at least one provision that could thwart legitimate disciplinary actions against officers engaged in misconduct.”
In researching this story, I came across an old defense of public-sector unions that argued, “It will rarely be in the union's interest… even where feasible, to negotiate provisions that protect incompetent or abusive employees” because competent workers don’t want to shield screwups. That makes sense to me, it’s what my union did—but cop unions have a different culture.
How cops protect each other
All of the above has led some union activist types, like Hamilton Nolan and Kim Kelly, to declare that police unions should be severed from the labor movement or abolished entirely. But the problem goes deeper than union protections, because it’s not merely the language of contracts and law that shield cops from scrutiny.
There’s also an informal code of silence among police officers, a “blue wall” that prohibits them from snitching on or criticizing their colleagues. Many cops seem to have an extreme form of workplace solidarity that could be seen in the three officers who watched Chauvin press his knee into Floyd’s neck and did not intervene, or the dozens of Buffalo officers who resigned their posts on an emergency response team in support of their colleagues who were suspended after they seriously injured a 75-year-old man.
This culture sometimes does result in officers being fired when they break the unwritten rules. In 2018, ProPublica published an investigation of a West Virginia case where a rookie cop lost his job after he didn’t shoot a man waving around an unloaded gun because he intuited correctly that the man was trying to commit “suicide by cop.” The man was shot by an officer who showed up after the rookie did, and that cop later accused the rookie of being a “coward” because the rookie should have seen the man as a threat to his fellow officers and gunned him down.
Cops are socialized to always have each others’ backs and not report misconduct; if a cop does face a complaint he’s coddled by a friendly investigation process and likely backed up by his code-of-silence-following colleagues. Even if a cop is fired for, say, Tasering a man on his knees then writing a false report, they may still be reinstated with back pay after a lawsuit, which recently happened in Austin. It took five years for the New York Police Department to fire Daniel Pantaleo, who violated NYPD policy in placing Eric Garner in a chokehold that killed him, and Pantaleo may be back in uniform if his lawsuit is successful.
If you do lose your job at one law enforcement agency, you might be able to find another one, like the Cleveland cop who shot and killed 12-year-old Tamir Rice and subsequently still found work as an officer in a nearby town.
Cops invariably say that these protections are necessary because they need the freedom to act as they see fit in dangerous, sometimes life-or-death situations and that second-guessing their use-of-force decisions will make officers overly cautious and incapable of doing their jobs. But if cops can’t criticize other cops, and civilians can’t criticize cops, even the most vile, stupid, racist police officer will never be fired. Many people in law enforcement seem to be OK with that, an attitude that informs police union contract language as well as how individual cops watch each others’ backs.
Can reformers win a fight with the police?
At the moment, it seems like politicians are considering real police reform, though even Bernie Sanders doesn’t think police abolition is a good idea. What they ought to be thinking about is how to force cops to follow the rules already in place.
In Rhode Island, legislators are working on weakening the state’s Law Enforcement Bill of Rights. The city council in Washington DC passed a bill making it easier to investigate officers for misconduct, among other reforms. New York State has passed a series of reforms as well, including a repeal of a measure that protects police personnel records from public scrutiny. The Minneapolis City Council wants to “end” the city’s police department, though it's unclear what that would look like. (Last week, the Minneapolis police chief announced he was withdrawing from talks with the police union.)
In the past, much milder gestures toward reform have sparked outright rebellions from police unions. Like other government employees, cops can’t legally go on strike, but even the threat of a work slowdown on their part terrifies most politicians. When New York Mayor Bill de Blasio criticized the NYPD years ago, officers seemed to make fewer arrests and write fewer tickets, spooking de Blasio so much he shifted immediately to being pro-cop. (The cops still hate him.) A similar laziness affected Baltimore cops after their department was criticized for the death of Freddie Gray—and a wave of murders followed that apparent work slowdown.
Earlier this month Steve Fletcher, a Minneapolis City Council Member who has advocated police department budget cuts, wrote in Time:
Politicians who oppose the department’s wishes find slowdowns in their wards. After we cut money from the proposed police budget, I heard from constituents whose 9-1-1 calls took forever to get a response, and I heard about officers telling business owners to call their councilman about why it took so long. Since I’ve started talking publicly about this, elected officials from several cities and towns around the country have contacted me to tell me I am not alone in this experience.
That’s how far some police officers will go to push back against civilian oversight. Firing a bad cop often means facing a lawsuit and backlash from their union; trying to make it easier to fire bad cops in general might mean police officers stop doing their jobs, which is the sort of thing that leads to panicked constituent calls and ultimately, lost elections.
Few city officials have been willing to risk an open war with the police and all that could come with it—if cops won’t actually enforce laws, do you fire them? What do you do if they quit en masse? How many officers would you end up having to get rid of in order to clean up the department? Are you ready for the extremely negative ads in which the cop unions accuse you of making your city less safe? You might start out merely trying to reform your city’s law enforcement, but end up abolishing the police department because they unite so strongly against you.
Ultimately, the problem is that police officers have the strongest workplace bonds in the country. In a twisted way, their power shows what can be accomplished through union solidarity.
Just imagine what workers in another industry could accomplish if they shared bonds that strong. Conversely, imagine what kind of change police officers could bring about if they collectively decided that the important thing to do was weed out the type of cop who would put his knee on a man’s neck until he passed out.
It’s hard to fire the bad cops because the good cops don’t demand the bad ones get fired. What that says about those supposedly good cops, I’m not sure.
Thanks for reading What Went Wrong?, a newsletter by Harry Cheadle that publishes every Tuesday. If you have questions or comments, please email me at harrydcheadle@gmail.com. If you enjoyed it, please subscribe and tell someone about it.