Police Unions

Police Unions Catherine L. Fisk & L. Song Richardson ∗ 85 George Washington Law Review – (forthcoming 2017) Abstract Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years’ worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices. ∗ The authors are Chancellor’s Professor of Law and Professor of Law at the University of California, Irvine School of Law. The authors wish to thank Erwin Chemerinsky, Michael Oswalt, Martin Malin, Joe Slater, Ann Hodges, and Jeff Hirsch for valuable feedback, and Ivette Aragon, Zachory Burns, and John Sirjord for their helpful research assistance. 1 2016] POLICE UNIONS 2 TABLE OF CONTENTS INTRODUCTION................................................................................................2 I. POLICE DEPARTMENTS AND POLICE UNIONS ......................................8 A. The Structure of Police Departments and Police Labor Relations.......................................................................................8 B. From Professionalism to Community Policing ..........................14 C. Police Unions as a Response to Police Management and Police Department Structure......................................................20 II. POLICE UNIONS AS OBSTACLES TO REFORM .....................................30 A. Statutory and Contractual Limits on Discipline and Transparency .............................................................................32 B. Other Limits on Reform..............................................................37 1. . Changing Conditions of Employment ................................. 37 2. . Union Structure ................................................................... 38 III. POLICE UNIONS AS AGENTS OF POLICE REFORM...............................40 A. Examples of Police Unions Being Agents of Reform .................41 B. Drawing Lessons from Experiences ...........................................47 IV. CHANGING POLICE UNIONS...............................................................55 A. Why Empower New Labor Organizations in Police Departments? .............................................................................56 B. A Form of Members-Only Bargaining .......................................61 C. Will This Version of Members-Only Unionism Weaken Public Sector Unions? And Is That a Bad Thing? ....................66 CONCLUSION .................................................................................................72 INTRODUCTION A major law and policy debate shaping the contemporary landscape of racial inequality today concerns police, whom critics assail as a major source of racial inequity and whose unions are said to be the major obstacle to reform. Critics often cite a recent instance in which a police officer who engaged in appalling misconduct escapes firing or discipline through the intervention of a union or invoking a statutory or contractual job protection. The many recent instances of police killing civilians – when Darren Wilson shot Michael Brown in Ferguson, Missouri, or Daniel Pantaleo choked Eric Garner to death on a Staten Island street, or Baltimore police officers killed Freddie Gray while driving him to jail, or Peter Liang shot Akai Gurley in the stairwell of a New York apartment building, or Jeronimo Yanez shot Philando Castile during a traffic stop in suburban St. Paul –have sparked calls 3 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX to fire and prosecute the officer, and outrage at the difficulty and delays in doing so and at the union’s resistance to summary discipline. People rightly wonder why the union conceives of its obligation as protecting cops who appear to have engaged in clear misconduct rather than protecting the interests of “good” ones by allowing “bad” ones to be discipline, fired, and/or prosecuted. On this analysis, public employee unions are a major impediment to the kinds of reforms that would eliminate pervasive racism toward the urban poor. 1 For their part, many rank and file police officers see the union as an important protection against endemic arbitrariness in discipline. Police union leaders believe they are legally and morally obliged to advocate for their members, including those accused of misconduct, and to resist efforts to strengthen the power of management to discipline officers. In part because union leaders are elected by the membership, many are reluctant to publicly question the legality of their members’ behavior, and some dismiss criticisms as reflecting anti-police attitudes. If police union officials have any private reservations, they feel constrained by role to remain publicly silent at the very least, and often describe criminal punishment of officers who kill as being politically motivated efforts to scapegoat individual officers for systemic problems. 2 In their view, what appears to outsiders to be egregious police violence is in fact a justifiable reaction to dangerous suspects, bad management, and difficult working conditions, and the union’s role is to protect hard-working officers from a witch hunt so that officers can protect the public. In-depth investigations of police departments in the wake of highly publicized incidents of police violence since 2012 provide support for the views of both police union critics and police union leaders. The August 2016 report of the United States Department of Justice, “Investigation of the Baltimore City Police Department,” for example, faults both rank and file and supervisors for the pattern of unconstitutional stops, searches, arrests, and excessive force, the “severe and unjustified” racial disparities harming African-Americans, and retaliation against civilians and police officers who 1 Similar criticisms have been leveled at teachers’ unions, and for similar reasons. See Daniel M. Rosenthal, Public Sector Bargaining, Majoritarianism, and Reform, 91 OREGON L. REV. 673 (2013) (describing criticisms of teachers’ unions). We focus on police unions in this paper, leaving to others to consider the extent to which our analysis and our proposal might be appropriate for other public sector employees. 2 Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminal-justice/2016-02-solidarityin-blue; Police Union Expresses Frustration Over Labor’s Response to Ferguson, Eric Garner, Buzzfeed (Dec. 12, 2014), available at https://www.buzzfeed.com/jacobfischler/police-union-expresses-frustration-over-laborsresponse-to-f?utm_term=.np51r4WXq#.ilQlq3d0x (last visited July 7, 2016). 2016] POLICE UNIONS 4 speak out about abuses. 3 The DOJ Report criticizes certain statutory and contractual job protections which police unions fought hard to attain and vigorously defend, but it also describes shocking incidents of managerial neglect and retaliation of the sort that prompt employees to join and defend unions in the first place. 4 While the DOJ Report on Baltimore takes no position on that city’s police union, as we explain below, past DOJ civil rights interventions and consent decrees have encountered unions as obstacles to implementation of reform. Yet many calls for reform propose mechanisms of institutionalized cooperation between rank and file and management that unions may be uniquely capable of delivering without addressing why unions have not previously advocated such mechanisms or why they might resist them. Whether public employee unions are agents of or obstacles to government reform looms large in contemporary law, particularly because local government employees (including police) are among the most densely unionized in the country. 5 Until the passing of Justice Scalia, the Supreme Court appeared to be on a path to dramatically reducing the power of government employee unions, as five Justices expressed concern that teachers’ unions exert undue power in setting education policy. 6 Moreover, legislatures in many states have eliminated the ability of some government employees to bargain collectively and narrowed the permissible subjects of bargaining for those employees who retain union rights at all, and these reductions in the power of public employee unions are often described as being necessary to reduce the cost and improve the quality of government service. 7 Concern about the influence of public employee unions is not confined to the political right, as activists and scholars have focused criticism on union contractual provisions protecting officers investigated for excessive use of force. 8 3 U.S. Department of Justice, Civil Rights Division, Investigation of the Baltimore City Police Department (August 10, 2016), available at http://civilrights.baltimorecity.gov/sites/default/files/20160810_DOJ%20BPD%20ReportFINAL.pdf. [hereafter DOJ Baltimore Report]. 4 Id. 5 As of 2015, 45% of local government employees are represented by a union, as compared to less than 7 percent of private sector employees. U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release, Union Members – 2015, USDL 16-0158 (Jan. 28, 2016), available at http://www.bls.gov/news.release/union2.nr).htm. 6 After Justice Scalia died, an equally divided Court affirmed the lower court’s dismissal of the suit and, therefore, the law remains unchanged. Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (Mem. 2016); Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). 7 See MARTIN H. MALIN, ET AL., PUBLIC SECTOR EMPLOYMENT: CASES AND MATERIALS 9-20 (3d ed. 2016) (gathering sources). 8 See, e.g., Stephen Rushin, Police Union Contracts, 66 DUKE L.J. __ (forthcoming 2017) (arguing that state labor law poses a significant barrier to police reform and proposing 5 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. 9 Police in most states enjoy significantly more procedural and substantive protections against discipline for on-the-job and off-the-job misconduct than do private sector employees. As government employees, police have constitutional due process rights if as a matter of state or local law or practice they have an expectation of continued employment sufficient to create a property interest. 10 They also have constitutional immunity from use, in a criminal prosecution, of a statement made during an internal administrative investigation when the officer was compelled, under penalty of job discipline, to speak. 11 They also have a very limited First Amendment right to be free from retaliation for political activity off the job, unless the municipality has adopted a valid, nondiscriminatory law prohibiting partisan political that the public be given a right to participate in collective bargaining over police disciplinary procedures); Rachel A. Harmon, The Problem of Policing, 110 MICH. L. REV. 761, 799 (arguing that “[c]ollective bargaining rights deter department-wide changes to prevent constitutional violations” and proposing that scholars attend not only to constitutional and civil rights laws regulating policing but also to labor and employment law); Samuel Walker, “The Baltimore Police Union Contract and the Law Enforcement Officers’ Bill of Rights: Impediments to Accountability,” (May 2015) (arguing that collective bargaining agreements and LEOBORs are impediments to police accountability); Black Lives Matter Publishes ‘Campaign Zero’ Plan to Reduce Police Violence (Aug. 26, 2015), available at http://www.npr.org/2015/08/26/434975505/black-lives-matter-publishes-campaign-zeroplan-to-reduce-police-violence, See also Developments in the Law – Policing, 128 HARV. L. REV. 1706 (2015) (discussing the law regulating policing, but not delving into labor law); Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U. PUB. INT. L.J. 185 (2005). But see Kate Levine, Police Suspects, 116 COLUM. L. REV. 1197 (2016) (urging that critics are mistaken to advocate eliminating procedural protections for officers suspected of wrongdoing and instead that the investigative protections available to officers should be extended to all criminal suspects). We discuss our points of agreement and disagreement with these scholars infra in Part __. 9 See Keenan & Walker, supra (advocating reduction of LEOBOR protections) and Levine, supra (advocating extending them to all suspects). 10 Bishop v. Wood, 426 U.S. 341 (1976) (police officer who was considered a “permanent employee” under state law was nevertheless an at will employee under city practice and therefore was not entitled to due process before termination); Perry v. Sindermann, 408 U.S. 593 (1972) (junior college professor had property interest in continued employment even in absence of a tenure system because the faculty guide created an expectation of tenure). 11 Garrity v. New Jersey, 385 U.S. 493 (1967). See Steven D. Clymer, Compelled Statements from Police Officers and Garrity Immunity, 76 N.Y.U. L. REV. 1309 (2001). 2016] POLICE UNIONS 6 activity. 12 In at least sixteen states, police in addition have statutory rights to certain procedures in the investigation of misconduct under Law Enforcement Officers Bills of Rights (LEOBOR) and they have civil service protections in many other states. 13 In addition to these constitutional and statutory protections, police union contracts contain additional procedural and substantive protections against discipline. For all the public controversy over police unions and the contrary points of view about their role in promoting or thwarting police reform, there has been relatively little legal scholarship on them. 14 Scholars of policing have debated police professionalization and community policing, and have discussed the relationship between policing and democracy, but have, as police scholar Samuel Walker put it, “seriously neglected” police unions.15 The substantial social science literature on policing and police unions has rarely engaged with public sector labor law, other than to note that collective bargaining rights are positively correlated with increased compensation and job protections. Few scholarly discussions of police reform have systematically explored the opportunities and constraints that labor law offers in thinking about organizational change in police departments. 16 Labor 12 Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016); United States Civil Service Commission v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973). 13 Ariz. Rev. Stat. Ann. 38-1101; Cal. Gov’t Code 3301 et seq.; Del. Code Ann. Tit. 11, 9200 et seq.; Fla. Stat. Ann 112.532; 50 Ill. Comp. Stat. Ann. 725/3.3; Ky. Rev. Stat. Ann. 15.520; Md. Code Ann., Pub. Safety 3-104; Minn. Stat. Ann 626.89; Nev. Rev. Stat. Ann. 289.060; N.M. Stat. Ann. 29-14-4; R.I. Gen. Laws Ann. 42-28-6-2; Tex. Loc. Gov’t 143.051, 143.123; Va. Code Ann. 9.1-501; W.Va. Code Ann. 8-14A-2. 14 Rushin, Police Union Contracts, supra note 8; Seth W. Stoughton, The Incidental Regulation of Policing, 98 MINN. L. REV. 2179, 2205- 2217 (2014). Law professor David Sklansky has published his work on police unions in policing journals, as has criminologist Samuel Walker, but few other scholars’ work on police unions appeared in law reviews. See, e.g., MONIQUE MARKS & DAVID SKLANSKY, EDS., POLICE REFORM FROM THE BOTTOM UP: OFFICERS AND THEIR UNIONS AS AGENTS OF CHANGE (New York: Routledge, 2012) (a reproduction of special issues of two journals: 9 POLICE PRACTICE AND RESEARCH no. 2 (2008) and 18 POLICING AND SOCIETY no. 2. See also Harmon, The Problem of Policing, supra note 8. 15 Samuel Walker, The Neglect of Police Unions: Exploring One of the Most Important Areas of American Policing, 9 POLICE PRAC. & RES. 95, 95 (2008) (noting that although police chiefs and civil rights activists “frequently allege that the police union prevents the fair and thorough investigation of officer misconduct and the proper discipline of officers who have in fact engaged in improper activity,” scholars “should not take these allegations at face value, since they are made by persons with a direct interest in the issues involved”). As noted above in note 9, very recently legal scholars have begun to examine certain aspects of police labor and employment relations, but ours is, to date, the only law review article systematically studying the role of police unions as institutions. 16 As Stephen Rushin says in his forthcoming analysis of police union contracts, legal scholars have only recently discussed the impact of labor and employment law on police behavior. Rushin, supra note 8 at __. 7 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX lawyers and scholars have long debated legal rules to protect the rights and interests of employees consistent with managerial rights and interests, but have ignored police unions, and have not, for example, analyzed police union contractual protections. 17 A particular concern of labor law has been whether and how unionization can improve the quality of work for the benefit of consumers of goods and services while simultaneously protecting the dignity and standard of living of workers. But more work remains to be done in thinking about police unions and public sector labor law as offering leverage or resistance to change. In short, although there is a general scholarly consensus that police unions play an important role in policing and politics, there is no agreement concerning their proper role, and there has been almost no sustained analysis of the role they might play in police reform. 18 The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement notwithstanding a long history of police rank and file resistance to imposition of reforms without their input. In both public policy debate and in the nascent legal scholarship on policing in the wake of the recent spate of police violence that spawned the Black Lives Matter movement, many have advocated restricting the job protections for police officers in order to facilitate the detection and punishment of criminal police violence. As will be apparent, we, too, believe that reform is essential. But reform will not be accomplished simply by eliminating job protections, even if that were politically feasible. And, without support from some police rank and file and police unions, the kinds of reforms that are now being proposed – e.g., public involvement in unionmanagement negotiation of disciplinary procedures 19 – are unlikely ever to be enacted or implemented. Rather, police need to be involved in improving police practices, and that involvement very likely requires the cooperation of some kind of officer labor representative This article seeks, in four parts, to explain how public sector labor law might be changed to enable activists outside of police departments to find allies within police departments to support reforms. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part 17 Until Rushin, supra note 8, the only content analysis of police union contracts was a 1992 content analysis of 328 contracts. David L. Carter & Allen D. Sapp, A Comparative Analysis of Clauses in Police Collective Bargaining Agreements as Indicators of Change in Labor Relations, 12 AM. J. POLICE 17 (1992). 18 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 192 in POLICE VIOLENCE: UNDERSTANDING AND CONTROLLING POLICE ABUSE OF FORCE (Eds. William A. Beller & Hans Toch, 1996). 19 See, e.g., Rushin, supra note 8. 2016] POLICE UNIONS 8 II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years’ worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices. I. A. POLICE DEPARTMENTS AND POLICE UNIONS The Structure of Police Departments and Police Labor Relations Across the nation, there are approximately 18,000 police agencies which together employ more than 1.1 million people, 750,000 of whom are sworn officers. 20 Although many small or rural departments do not have unions, most large urban police departments are unionized. 21 The total number of unionized officers is unknown and unions differ in their structure, priorities, and degree of activity. 22 Police departments are hierarchical, with a chain of command as in the military23 and a sharp division between the leadership and the rank and 20 See, e.g., Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminaljustice/2016-02-solidarity-in-blue 21 For a description of the wide variety of policing organizations that exist, see Peter K. Manning, Policing Contingencies 43-45 (2003). 22 Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminal-justice/2016-02-solidarityin-blue; Colleen Kadleck, Police Employee Organizations, 2 POLICING INT’L J. POLICE STRATEGY & MGMT 341 (2003) (using a national sample of police employee organizations, explores the variety in their structure, membership and perspectives on labor relations) 23 David A. Sklansky, Not Your Fathers Police Department, 96 J Crim. L. & Criminology 1209, 1209 (2006). See also Monique Marks & David Sklansky, Introduction: The Role of the Ranks and File and Police Unions in Police Reform, in Police Reform from the Bottom Up, at 1, 3. This structure is a historical accident having to do with the origins of the modern police in England. Jerome H. Skolnick & James J. Fyfe, Above the Law: Police 9 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX file. 24 The top command, consisting of the police commissioner 25 and the various chiefs, 26 is responsible for official policy-making within the organization. 27 Typically, they have very little personal contact with the rank and file, 28 perhaps in part due to the long-dominant belief among police management scholars that police departments are best organized with “strong, top-down management.” 29 Middle management consists of captains, lieutenants, sergeants, and other equivalent positions. 30 Sergeants make up the lowest level of management and serve as the direct supervisors of the rank and file. 31 Given their placement in the management structure, sergeants often are aligned more closely with the rank and file than with top command. 32 The bulk of the department consists of the rank and file, who sit at the bottom of the organization.33 At any given time, over sixty percent of officers within a department are in the patrol division. 34 Most will remain at this rank for their entire careers. 35 This has important implications for unions, we argue, because officers turn to unions to protect their interests since they otherwise have little voice in the operation of the department. Under the prevailing quasi-military style of police department organization, management seeks to maintain a high level of internal and the Excessive Use of Force 116-117 (1993)[hereinafter Skolnick & Fyfe]; Egon Bittner, Aspects of Police Work 25 (1990). 24 Skolnick & Fyfe, at 118; Peter K. Manning, A Dialectic of Organisational and Occupational Culture, in POLICE OCCUPATIONAL CULTURE: NEW DEBATES AND DIRECTIONS 49 (Megan O’Neill, Monique Marks, Anne-Marie Singh, Eds. 2007) (2007)(hereinafter Dialectic). This command structure is the result of one of the three different eras of police reform. George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing 97-114 in Community Policing: Classical Readings. In Seattle, for example, the chain of command is as follows: Chief of Police, Deputy Chief, Assistant Chief, Captain, Lieutenant, Sergeant and officers and detectives. http://www.seattle.gov/police/work/personnel.htm. 25 Sklansky, Not Your Father's, at 1209. Detectives are typically considered a separate group from patrol officers and have a higher status. Manning, Dialectic, at 64; Wesley Skogan, Why Reforms Fail, in Police Reform from the Bottom Up, at 148 (same). 26 Manning, Dialectic, at 70 (The top command “is composed of officers above the rank of superintendent (or commander) including chief, and deputy chief or assistant chief.”). 27 Id. 28 Id. at 64. 29 Marks & Sklansky, Introduction, in Police Reform from the Bottom Up, at 1. 30 Manning, Dialectic, at 69 (middle management consists of the “sergeant, lieutenant, inspector, chief inspector and superintendent or their equivalents” who are “[s]ymbolically located between command and other officers.”). 31 Sklansky, Not Your Father's Police Department, at 1209. 32 Manning, Dialectic, at 63. In fact, sometimes sergeants are considered part of the rank and file. David H. Bayley, Police Reform: Who Done It?, in Police Reform from the Bottom Up, at 23. 33 Unless otherwise noted, the discussion of the rank and file excludes detectives. 34 Manning, Dialectic, at 63. 35 Id. at 54. 2016] POLICE UNIONS 10 discipline and strict rank and file obedience to rules and policies. 36 The prevailing belief is that the rank and file must be strictly controlled and monitored in order to ensure compliance. 37 Police managers “worry about laziness, corruption, racial profiling, and excessive force, and they do not trust rank and file officers on any of those dimensions.” 38 “In the face of continued scandals and charges of inequity, police administrators tend to maintain an almost phobic preoccupation with accountability and conformity.” 39 Although management focuses intensely on control and conformity with policy, police work inevitably requires the exercise of discretion. 40 The judgment and discretion that most police officers and management would agree is essential to good policing means that precise rules cannot always be followed, general rules do not provide meaningful guidance, 41 and policies are therefore not consistently enforced. Flexibility opens the door to arbitrariness and discrimination. This is one reason why the relationship between line officers and management has been described as one “dominated by a feeling of uncertainty.” 42 Rank and file officers fear punitive 36 Bittner, at 137; Manning, Police Contingencies, at 49; Eugene A. Paoline, Taking Stock: Toward a Richer Understanding of Police Culture, 31 J. Crim. J. 199, 203 (2003) (“Uniformity in appearance, attitude, and behavior, as well as strict adherence to rules and procedures, is expected of all recruits.); David N. Allen, Police Supervision on the Street: An Analysis of Supervisor/Officer Interaction During the Shift, 10 J. Crim. Just. 91, 92 (1982)(noting the strict and unquestioning obedience required of the rank and file). 37 Wesley G. Skogan & Tracey L. Meares, Lawful Policing, 593 Annals of the American Academy of Political and Social Science 66, 67 (2004)(“The organization under which officers work struggles to keep control of its field force.); Erwin Chemerinsky, An Independent Analysis of The Los Angeles Police Department's Board of Inquiry Report on the Rampart Scandal, 34 Loy. L.A. L. Rev. 545, 565 (2001). 38 Skogan, Why Reforms Fail, at 144, 145. See also George L. Kelling, Robert Wasserman, & Hubert Williams, Police Accountability and Community Policing, reprinted in Community Policing: Classical Readings, at 269-270 (“Police chiefs continually worry about abuse of authority…. As a consequence, it is not surprising that police leaders have developed organizational mechanisms of control that seek to ensure police accountability to both the law and the policies and procedures of police departments.”); Hans Toch, Police Officers as Change Agents, in Police Reform from the Bottom Up, at 30 (Management wonders “[c]an we really trust those bums to be honest and law-abiding … and dedicated?”). 39 Todd Wuestewald & Brigitte Steinheider, Shared Leadership: Can Empowerment Work in Police Organizations? The Police Chief, Jan. 2006, at 48, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&articl e_id=789&issue_id=12006 40 Id. 41 Skolnick & Fyfe, at 120-21. 42 Paoline, Taking Stock, at 201. 11 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX enforcement of policy, often perceive management as being “not on the level” 43 and as using rules primarily to blame them when things go wrong. 44 Rank and file officers in many departments do not trust management to mete out discipline fairly. In Los Angeles, for example, the Police Protective League (the LAPD officers’ union) in 2001 requested that a law professor and a group of civil rights lawyers investigate a major scandal in the Rampart Division because the League did not trust the LAPD to conduct a fair and thorough investigation and feared the union and some officers might be scapegoated for a corruption scandal that they thought was a symptom of a larger problem. The Rampart Report found that “virtually everyone, except the Chief of Police and the Board of Inquiry, is dissatisfied with the current disciplinary system.” Concerns included perceptions that the chief controlled the system and used it to protect command staff and persecute whistleblowers and minority officers. 45 Nearly fifteen years later, similar perceptions persisted. In 2014, an overwhelming number of LAPD rank and file officers still believed that management’s disciplinary decisions “revolved around an officer’s rank and whether he or she was well liked by their superiors in the department. [Officers believed that c]ommand-level officers routinely received slaps on the wrist or no punishment, while lowerranking officers were suspended for similar misconduct.” 46 In Baltimore in 2016, the DOJ found that the BPD failed to apply discipline consistently: “Throughout our interviews and ride-alongs with officers, we heard officers express that discipline is only imposed if an incident makes it into the press or if you were on the wrong side of a supervisor, not because of the magnitude of the misconduct.” 47 Empirical studies of police stress find that the indignities of poor employment practices – arbitrary decisionmaking, poor working conditions, 43 Skolnick & Fyfe, at 121. Id. 120-121. Sociologist Egon Bittner terms this the “legality” problem. Bittner, at 350. See also Brown, at 9 (noting that patrol officers “must cope not only with the terror of an often hostile and unpredictable citizenry, but also with a hostile—even tyrannical—and unpredictable bureaucracy.”); Malcolm K. Sparrow, Implementing Community Policing, reprinted in Community Policing: Classical Readings, at 177. 45 Chemerinsky, Rampart, 598. 46 Joel Rubin & Jack Leonard, LAPD Survey in Wake of Dorner Rampage Finds Bias Complaints, Nov. 13, 2014, LA Times, available at http://www.latimes.com/local/california/la-me-lapd-dorner-20141114-story.html. See also Robin Abcarian, She’s the Mom of Four Black Men, a Former L.A. Cop and a Major Skeptic of Justifiable Police Shootings, Jul. 18, 2016, LA Times, available at http://www.latimes.com/local/abcarian/la-me-abcarian-cheryl-dorsey-20160718-snapstory.html (“The Dorner tragedy, by the way, also occasioned a spasm of self-reflection in the LAPD. Chief Charlie Beck surveyed his troops and discovered a widespread perception that the LAPD dispensed discipline unfairly, based on skin color, rank and nepotism.”). 47 DOJ Baltimore Report at 147. 44 2016] POLICE UNIONS 12 feeling lack of support from supervisors – cause more stress to officers than witnessing injuries, deaths, or other traumatic events involving police work.48 Recent commentary on police legitimacy noted this and, giving the example of New York police officers who were disciplined and publicly reprimanded for playing football with youngsters at a Fourth of July celebration at a lowincome housing project, observed that police officers “react to arbitrary power in the same way that citizens do when they are policed: with ambivalence about the institution and resistance or hostility toward the rules of that institution.” 49 As one policing scholar observed, Officers come to find out that when they are recognized it is usually for something that they have done wrong (procedurally), rather than for something they have done well (substantively)…. [O]fficers are constrained, working within an organization that demands that all problems be handled on the street with efficiency and certainty, yet held to excessive scrutiny by watchful administrators at a later date. 50 In sum, police scholars note that rank and file officers often perceive their departments “as a mock bureaucracy, capricious, unpredictable and punitive, rather than democratic and fair.” 51 Although the reality is that both management and the rank and file understand that rules cannot guide their behavior in all instances, any violation, no matter how small, can result in punishment. 52 Thus, management’s fixation on rule-following in the face of 48 Akiva Liberman, Suzanne R. Best, Thomas J. Metzler, Jeffrey Fagan, et al., Rotine Occupational Stress and Psychological Distress in Police, 2 POLICING: AN INTERNATIONAL JOURNAL 421 (2002). 49 Jeffrey Fagan, Tom R. Tyler, & Tracey L. Meares, Street Stops and Police Legitimacy in New York, in Jacqueline E. Ross and Thierry Delpeuch (eds.), Comparing the Democratic Governance of Police Intelligence: New Models of Participation and Expertise in the United States and Europe 203 (2016), available at http://ssrn.com/abstract=2795175; Christopher Robbins, NYPD: Dry-Humping is OK, but Throwing Football is Misconduct, THE GOTHAMIST, Sept. 19, 2011, available at http://gothamist.com/2011/09/19/nypd_dryhumping_ok_throwing_footba.php 50 Paoline, Taking Stock, at 201. See also Skogan & Meares, Lawful Policing, at 79 (“Traditionally, police management consists of overseeing subordinates until they break a rule in the book and then punishing them. It is essentially negative, with little in their management kitbag but sanctions for noncompliance; hence, the emphasis on internal inspections to ensure compliance with rules.”). 51 Manning, Dialectic, at 73; Paoline, Taking Stock, at 204 (noting that “officers must also provide protection to one another against supervisors in the organizational environment, who are often viewed as ‘out to make their jobs difficult.’”); Kelling et al, Police Accountability, at 277. 52 Chemerinsky, Rampart, at 566 (“Because police officers are almost always at risk of violating some stricture, management is perceived by police officers as oppressive and quixotic.”); Michael K. Sparrow, Implementing Community Policing, reprinted in Community Policing: Classical Readings, at 177-178. 13 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX these contradictions “delegitimize[] everything the brass does.” 53 The result is that management officers “are perceived as mere disciplinarians, [and] are often viewed by the line personnel with distrust and even contempt.” 54 In light of this focus on control and discipline of rank and file for conduct like playing football with kids that seems desirable or at least benign, police officers often focus their union bargaining and contract enforcement efforts toward protecting officers from discipline and arbitrary work assignments, fighting for compensation, and ensuring compliance with seniority rules, among other labor interests. Although these negative perceptions of management’s motives could be tempered by contact, rank and file officers have few opportunities to interact with top command outside of the context of punishment. 55They have little direct communication with top-level management because the information flow is almost exclusively downwards through the chain of command, and not the opposite. 56 This isolation from top command increases the risk of miscommunication, misunderstandings, and resentment, and it also leads police unions to adopt a highly defensive approach to unionmanagement relations. 57 The rank and file’s shared perception that management’s exercises of power are illegitimate, coupled with their isolation from top command, facilitates the creation of a subculture amongst the rank and file with its own political life that remains largely hidden from management. 58 Amongst the 53 Skolnick & Fyfe, at 122 (“Esprit among officers is desirable and necessary, but when coupled with the necessity of routine violations of the rules in order to get the job done, it delegitimizes everything the brass does.”). 54 Bittner, 143-44. See also Chemerinsky, Rampart, at 565 (relating being “stunned by the extent of hostility to the Chief of Police and the command staff” within the LAPD). 55 Manning, Dialectic, 68 (“Very little direct exchange unites [top command] and officers and this relationship shows the greatest social distance, ambivalence, and animosity.” And, when things go wrong, such as a fatal shooting, top management “in general acts first and asks questions later.”). 56 Bittner, at 152. Skolnick & Fyfe, at 121 ("This sense of isolation is exacerbated by the difficulty of communicating up and down the rigid chains of command that characterize the military-style hierarchy."). 57 Manning, Policing Contingencies, at 246: (“The segments of the culture, a response to hierarchy, isolation, and information based at the bottom, communicate more within than across, creating constant misunderstandings and a sense of arbitrary discipline.”); Chemerinsky, Rampart, at 565 (noting the alienation between the rank and file and top command within the LAPD.). 58 James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts 199 (1992). See generally Paoline, Taking Stock, at 200 (noting that “viewing police culture as an occupational phenomena suggests that officers collectively confront situations that arise in the environments of policing, and subsequent attitudes, values, and norms that result are in response to those environments.”). See also Brown, at 94 (noting that “hierarchical controls… increase group solidarity and loyalty among patrolmen and the dependence of a 2016] POLICE UNIONS 14 rank and file, there is a “rare degree of camaraderie and group loyalty” 59 that is partly the result of having to confront “unpredictable and punitive supervisory oversight.” 60 In short, scholars agree, management and the rank and file have their own distinct cultures 61 and the relationship between them is often characterized by “mutual suspicion and mistrust.” 62 As will be explored in section C, police officers responded to this kind of hierarchical and punitive supervisory structure by forming unions. And many police officers are quite dedicated unionists precisely because they see the union as necessary to protect their interests in fair process and in having a voice in the workplace. B. From Professionalism to Community Policing The contemporary emphasis on hierarchy and adherence to rules was the product of mid-twentieth century reforms that attempted to combat police corruption by professionalizing police work. In the late nineteenth century, police were closely tied to their communities, were under the control of local political machines, engaged in foot patrols, and often lived in the communities they policed. 63 The close connection to the community and its political machinery was believed to lead to police corruption. 64 To sever police hiring, promotion, and control from the local political machine, early twentieth-century local government reformers sought to “professionalize” the police. Professionalism did not refer to giving individual rank and file officers more autonomy and discretion. Rather, it referred to reducing political influence over police and improving police efficiency. patrolman upon his immediate peer group, while exacerbating the ongoing conflict between patrolmen and administrators.”). 59 Skolnick & Fyfe, at 122. See also Hans Toch, Police Officers as Change Agents, at 28 (“A code of conduct can evolve in the locker room that appears to tolerate transgressions and discourages 'snitching' on peers.”). 60 Paoline, Taking Stock, at 201, 202. 61 Hans Toch, Police Officers as Change Agents, at 30; David Alan Sklansky, Seeing Blue: Police Reform, Occupational Culture, and Cognitive Burn-In, in Police Occupational Culture: New Debates and Directions, 8 Sociology of Crime, Law and Deviance, at 15 (Megan O’Neill, Monique Marks and Anne-Marie Singh Eds. 2007)(“An influential study in the early 1980s argued that ‘management cops’ have their own culture, separate and distinct from ‘street cop culture.’”)(hereinafter Sklansky, Seeing Blue). Elizabeth ReussIanni, Two Cultures of Policing: Street Cops and Management Cops (1983); David H. Bayley, Police for the Future 66 (1994). 62 Hans Toch, Police Officers as Change Agents, at 30; Sklansky, Seeing Blue, at 15; Chemerinsky, Rampart, at 565. 63 George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing, in COMMUNITY POLICING: CLASSICAL READINGS, 97, 98-99 (Willard M. Oliver ed., 1999). 64 Id. at 100-101. 15 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX A crucial aspect of the professionalism project was to define the core mission of the police as crime control, thereby insulating officers from political influence and corruption by distancing them from the community.65 Once the official function of the police was crime control, departments “move[d] away from crime prevention (except as an outcome of arrest), peacekeeping, order maintenance, and the provision of social and emergency services.” 66 This, along with the isolation of officers from citizens that was thought necessary to combat corruption, contributed to what various scholars characterize as “officer alienation from the citizens they serve,” officers’ selfconception as “crime fighters and the ‘thin blue line,’” and “a warrior mentality.” 67 An important goal of the professionalism era was to control rank and file officers, leading to extensive and strict rules to govern their conduct, increased surveillance and oversight of officers, and reduced rank and file officer discretion. 68 The control of the rank and file did not end with their 65 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 193 in Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996); Sklansky, 37; Samuel Walker, “Broken Windows” and Fractured History: The Use and Misues of History in Recent Police Patrol Analysis, in Classical Readings, at 328 (“The most professionalized departments, in fact, took extra measures to de-personalize policing. Frequent rotation of beat assignments was adopted as a strategy to combat corruption.”); George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing, in COMMUNITY POLICING: CLASSICAL READINGS, 103 (Willard M. Oliver ed., 1999); George L. Kelling & William J. Bratton, Implementing Community Policing: The Administrative Problem, in COMMUNITY POLICING: CLASSICAL READINGS, 261 (Willard M. Oliver ed., 1999) (“The police role was narrowed to law enforcement in this professionalism era in order to address “extensive political corruption of police agencies, widespread financial corruption of police officers and departments, extensive police abuses of their authority, and large-scale inefficiencies. To counter these circumstances, reformers redefined the basic strategy of American policing. They narrowed police functioning to criminal law enforcement.”); Samuel Walker, “Broken Windows” and Fractured History: The Use and Misuses of History in Recent Police Patrol Analysis, in Classical Readings, at 327 (“Two developments in the 1930s launched a radical reorientation of police patrol. The first was greatly increased use of patrol cars, which took the patrol officer of the street and isolated him from the public. The second was the development of the Uniform Crime Reports (UCR) system, which then became the basic measure of police ‘success.”); George L. Kelling & William J. Bratton, Implement CP: The Administrative Problem, at 259. Sue Rahr & S K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals, US. Department of Justice, Office of Justice Programs, National Institute of Justice (2015). 66 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 193 in Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996). See also Sklansky, 36. 67 Kelling & Kliesmet, Police Unions, at 191, 203-4. 68 Id. at 191, 193; Sklansky, 37, 171; Samuel Walker, The Police in America: An Introduction 2d ed. at 14 (1992). Police reformers viewed officers “as a tightly controlled and inherently limited functionary whose primary, if not sole, role was nondiscretionary law 2016] POLICE UNIONS 16 work related duties. Police management also attempted to control the personal lives of officers in order to reduce the opportunities for corruption.69 Officers were prohibited “from living in the areas they policed, from incurring debts, or from being involved in businesses in their areas, as well as requiring them to declare the business interests of their families.” 70 Some departments went even further to “de-personalize policing” by frequently reassigning patrol officers to new neighborhoods far removed from the neighborhoods where officers lived. 71 These, and a host of other controls, helped spur the creation of police unions. 72 A new model of policing known as community policing was introduced in the late 1970s and early 1980s 73 to put officers back into relationships with the community and to transform rank and file officers into problem solvers. 74 Community policing is a broad concept used to describe a enforcement.” Kelling & Kliesmet, Police Unions, at 194, citing George L. Kelling & James K. Stewart, The Evolution of Contemporary Policing, in Local Government Police Management 3rd Ed (William A. Geller ed. 1991). In part, this model of strict control of the rank and file was in line with the Frederick Taylor model for routinizing factory work. Sklansky, 158. The Taylorism model focuses on top-down control of workers through rigid rules. Todd Wuestewald & Brigitte Steinheider, Shared Leadership: Can Empowerment Work in Police Organizations? The Police Chief, Jan. 2006, at 48, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&articl e_id=789&issue_id=12006 (“The scientific and bureaucratic management principles of Frederick Taylor and Max Weber were in vogue and found welcome application in the drive to professionalize law enforcement….) See also Sklansky, 158. 69 Kelling & Kliesmet, Police Unions, at 195, citing Malcolm K. Sparrow, Mark H. Moore, & David Kennedy, Beyond 911: A New Era for Policing 36-37 (1990). See also George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing 97-114 in Community Policing: Classical Readings, at 102 (The concerns were with “separat[ing] the police from politics”) 70 Kelling & Kliesmet, Police Unions, at 195, citing Malcolm K. Sparrow, Mark H. Moore, & David Kennedy, Beyond 911: A New Era for Policing 36-37 (1990). 71 Samuel Walker, “Broken Windows” and Fractured History: The Use and Misuse of History in Recent Police Patrol Analysis, in COMMUNITY POLICING: CLASSICAL READINGS, 328 (Willard M. Oliver ed., 1999). 72 Kelling & Kliesmet, Police Unions, at 196. 73 Scott Lewis, Helen Rosenberg & Robert T. Signer, Acceptance of Community Policing among Police Officers and Police Administrators, 22 Policing: Int. J. Police Strat. & Mgmt. 567, 567 (1999). George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing 97-114 in Community Policing: Classical Readings, at 109. Jack Greene & Stephen Mastrofski, Community Policing: Rhetoric or Reality? 1988). See also Steve Herbert, ‘Hard Charger’ or ‘Station Queen’? Policing and the Masculinist State, 8 Gender, Place & Culture 55, 62 (2001). 74 Palmiotto M. Community Policing: A Policing Strategy for the 21st Century (2000); Stoughton S. Law enforcement’s “warrior” problem, 128(6) Harvard Law Review Forum 225 (2015). 17 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX wide variety of policing approaches. 75 Two common themes among them are that power is pushed to officers at the lower levels of the organization and that there is increased involvement with the community. 76 Some versions of community policing embrace the idea that the social work aspects of policing are important, 77 and encourage officers to attempt to determine the root causes of crime and to look beyond the criminal justice system to solve them. 78 Today, most departments represent that they are engaged in community policing. 79 Yet, police continue to follow professionalism-era practices for a variety of reasons, including the growth in quantitative measures of job performance and the so-called War on Drugs. 80 75 See generally Michael Palmiotto, Community Policing: A Policing Strategy for the 21st Century (2000). 76 George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing 97-114 in Community Policing: Classical Readings, at 109-113. See also Kelling & Kliesmet, Police Unions, at 202; Understanding Community Policing: A Framework for Action, at 124 (“In 1979, Herman Goldstein developed and advanced the concept of ‘problem-oriented policing’ (POP), which encouraged police to begin thinking differently about their purpose. Goldstein suggested that problem resolution constituted the true, substantive work of policing and advocated that police identify and address root causes of problems that lead to repeat calls for service. POP required a move from a reactive, incident-oriented stance to one that actively addressed the problems that continually drained police resources”) (citing Herman Goldstein, Improving Policing: A Problem Oriented Approach, 25 Crime & Delinquency 241 (1979)). 77 See generally Michael Palmiotto, Community Policing: A Policing Strategy for the 21st Century (2000) (“By the 1990s the concepts of community-oriented policing and problem-solving policing were merged into a form used widely today that encourages officers to understand and analyze the roots of problems, then to solve and evaluate them in ways that may include looking beyond the criminal justice system for solutions.) 78 L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 143-44 (2014), citing Steve Herbert, ‘Hard Charger’ or ‘Station Queen’? Policing and the Masculinist State, 8 Gender, Place & Culture 55, 63 (2001) and George L. Kelling, Robert Wasserman & Hubert Williams, Police Accountability and Community Policing, in Community Policing: Classical Readings, 269, 270 (Willard M. Oliver ed., 1999). 79 Wesley G. Skogan, The Promise of Community Policing, in POLICE INNOVATION: CONTRASTING PERSPECTIVES 27, 27 (David Weisburd & Anthony A. Braga eds., 2006) (“By 2000, a federal survey . . . found that more than 90 percent of departments in cities over 250,000 in population reported having full-time, trained community policing officers in the field.”) However, community policing involves a number of different practices, including patrolling on foot, or with bikes, horses, or segways. Id. Some communities “train civilians in citizen police academies, open small neighborhood storefront officers, conduct surveys to measure community satisfaction, canvass door-to-door to identify local problems, publish newsletters, conduct drug education projects, and work with municipal agencies to enforce health and safety regulations.” Id. 80 See generally STEVE HERBERT, CITIZENS, COPS, AND POWER: RECOGNIZING THE LIMITS OF COMMUNITY (2006). George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing, in COMMUNITY POLICING: CLASSICAL READINGS, 97, 101–02 (Willard M. Oliver ed., 1999). 2016] POLICE UNIONS 18 The set of legal and policy changes known as the War on Drugs sought to eliminate drug sales and use through massive drug arrests and other proactive policing strategies. As many scholars observed, the War on Drugs fueled racial disparities in arrest rates and exacerbated negative relationships between the police and communities of color. Both community policing and the proactive policing strategies associated with drug enforcement policy required departments to gather information in order to analyze problems, and technological change enabled police departments to collect data and use data analysis in personnel management on an unprecedented scale. This had significant consequences for how police departments managed line officers and how officers responded. 81 Quantitative measures rapidly became one of most significant elements of contemporary evaluation of police officer job performance. The reliance on counting stops, arrests, and other measures of law enforcement vigor originated in New York under the leadership of William Bratton, a proponent of the “broken windows” theory of policing. The broken windows idea was that police could cut down on serious crimes by making it clear that even the trivial ones wouldn’t go unpunished. To ensure that the rank and file implemented this philosophy, especially in neighborhoods inhabited by indigent people of color, the NYPD developed a management system that kept careful track of arrest and crime statistics throughout the city. The system was called CompStat, short for “compare statistics.” The sharp decline in the number of murders in New York in the late 1990s coincided with the adoption of CompStat, and so cities across the United States embraced it and hired chiefs and consultants committed to implementing it, with the result that most large American cities now use some form of CompStat.82 Although some credited CompStat for falling murder and violent crime rates, by the early 2000s, doubters began to question whether broken windows policing and the CompStat measure of police work was the cause and some voiced doubts about the effects it had on police behavior. Eli Silverman, a police-studies professor at John Jay College of Criminal Justice, 81 Michael Palmiotto, Community Policing. Police Executive Research Forum, Compstat: Its Origins, Evolution, and Future in Law Enforcement Agencies (2013). More recently, predictive policing and other algorithms, Chicago heat lists, and big data are the new policing technologies. “Yet, an increased reliance today on technology to analyze and predict problems, in addition to outfitting police with weaponry that creates urban ‘warriors,’ can distance police from the communities they serve.” Stress on the Streets, at 17, available at http://www.policeforum.org/assets/docs/Free_Online_Documents/Compstat/compstat%20%20its%20origins%20evolution%20and%20future%20in%20law%20enforcement%20age ncies%202 013.pdf. 82 Saki Knafo, The Education of Edwin Raymond, NY TIMES MAGAZINE (Feb. 21, 2016). 19 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX who had been an early supporter of CompStat, had received a number of letters from NYPD officers saying that CompStat wasn’t all that it seemed. Silverman and a fellow criminologist and retired New York Police Department captain, John Eterno, set out to study how the system worked. They surveyed more than 2,000 retired NYPD officers in 2008 and 2012 and found that CompStat had a substantial effect on police work, but it was not uniformly positive. They learned that during the CompStat era, officers were twice as likely as their predecessors to say that they had been under pressure to increase arrests, and three times as likely to say they experienced pressure to increase summonses. 83 Most of this activity took place in minority neighborhoods. In predominantly black BedfordStuyvesant, Brooklyn, for example, officers issued more than 2,000 summonses a year between 2008 and 2011 to people riding their bicycles on the sidewalk, but an average of eight bike tickets a year in predominantly white and notably bike-friendly Park Slope. The New York Civil Liberties Union calculated that between 2001 and 2013, black and Hispanic people were more than four times as likely as whites to receive summonses for minor violations. 84 The emphasis on evaluating officers according to arrests, summonses and stops and frisks had the perhaps unintended consequence of dissuading officers from using innovative approaches to crime reduction, even when the innovations appeared to work. For example, “instead of praising the officer who developed a program that appeared to reduce shoplifting, the chief told him to ‘get more numbers.’” As one officer complained, “You don’t get recognized and rewarded for helping a homeless person get permanent housing, but you get recognized for arresting them again and again and again.” 85 The confluence of Compstat, Broken Windows policing and the War on Drugs not only created increasingly negative relationships between the police and communities of color, but it also negatively influenced the relationship between the rank and file and police management. Compstat, with the pressure it put on management to reduce the crime rate, led to management pressure on rank and file officers to perform in ways that could be measured. Management exercised more control and scrutiny over the daily work behaviors of rank and file officers. And, as will be discussed later, rank and file officers who expressed dissatisfaction with these practices were 83 Id. (noting that “[i]n districtwide CompStat meetings, executives interrogated commanders about their violent-crime statistics. Some commanders tried to protect themselves by underreporting or reclassifying major crimes. Others tried to show they were being ‘proactive’; invariably this meant more stops, more summonses, more arrests.”) 84 Id. 85 Id. 2016] POLICE UNIONS 20 threatened with poor performance evaluations, were given unpleasant work assignments, and were subjected to involuntary transfers, and other negative consequences to their daily work life. For all these reasons, rank and file officers turned to their unions for protection. C. Police Unions as a Response to Police Management and Police Department Structure Police officers in many cities began joining unions in the late nineteenth and early twentieth century when workers in every industry unionized, and for the same reasons – to improve pay and working conditions and to gain some measure of control over their work lives. 86 Police in Boston in 1919, for example, worked regular shifts of between 73 and 98 hours a week, were sometimes required to remain on duty for seventeen hours a day, and didn’t receive a raise between 1898 and 1913 even though the cost of living had doubled, and they had to buy their own uniforms. 87 Station houses were unsanitary. Supervisors restricted where officers could go on their scarce free time. Equally as important to police officers and government reformers was the idea that unions might reduce endemic corruption in local government. John Commons, the leading labor economist of the early twentieth century, found that labor organizing among municipal employees was the leading antidote to political machines and corruption because they aided reformers in local government to set wages, hours, and working conditions without regard to the personal, economic, and political selfinterest of city leaders. 88 But business and anti-labor groups feared that unionized police would strike and, more important, would not stop other employees from striking and picketing. When Boston police formed a union and affiliated with the AFL in August 1919, the chief of police suspended nineteen union leaders and in protest nearly three-quarters of the Boston police walked out the next day. Violence and looting ensued. Governor Calvin Coolidge called out troopers who, after firing into the crowd and killing 9 and wounding 23 more, stopped the looting and prevented support for the striking police from turning into a citywide general strike. The violence caused a panic about strikes by police or any other government employees, which resulted in the collapse of all 86 See JOSEPH E. SLATER, PUBLIC WORKERS: GOVERNMENT EMPLOYEE UNIONS, THE LAW, AND THE STATE, 1900-1062, AT 24-25 (2004); ROBERT M. FOGELSON, BIG-CITY POLICE (Harvard University Press, 1977), chapter 8; HERVEY A. JURIS & PETER FEUILLE, POLICE UNIONISM: POWER AND IMPACT IN PUBLIC SECTOR BARGAINING (Lexington Books, 1973), chapter 2. 87 SLATER 25. 88 Id. at 17 (quoting JOHN COMMONS, LABOR AND ADMINISTRATION (Macmillan, 1913), 111-115). 21 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX AFL-affiliated police union locals and a huge backlash against government employee unions generally and police unions in particular. 89 As a result, the unionization of government employees that had begun in the Progressive Era ground to a halt, only to really pick up steam in the post-World War II period as government employees’ earnings were outstripped by factory and skilled labor earnings and the growth of private sector unionization eventually made it seem that government employee unions were both desirable and inevitable. 90 Police officers formed local unions in various cities in the 1940s, and some police unions affiliated with national labor federations, including the American Federation of State, County and Municipal Employees (founded in 1937), and some with the national federations of police officers, including the Fraternal Order of Police (founded in 1901). States began to enact laws permitting government employee collective bargaining in the late 1950s (Wisconsin was the first in 1959 91). However, well into the 1960s, police departments routinely fired officers who attempted to unionize and courts upheld the power of cities to ban officers from joining unions. 92 In the absence of any legal right to unionize or bargain collectively, government employee unions became adept at securing their members’ interests through political activity and negotiating informal agreements with public officials.93 Unions finally succeeded in gaining a lasting foothold in American police departments in the late 1960s, 94 as rank and file officers felt attacked by the civil rights movement’s focus on police brutality and racism and by 89 Id. at 35-37; JURIS & FEUILLE,17; Sklansky, 77. In September 1919, the Boston Police Commissioner banned the police union, and a strike resulted. Joanne Klein, History of Police Unions, ENCYCLOPEDIA OF CRIMINOLOGY AND CRIMINAL JUSTICE (2014) at 2210. President Wilson called the strike a “crime against civilization,” one that rang of a Bolshevik threat and Communist undertones. After rioting and looting, all 1,147 strikers were dismissed. This event stalled the momentum that had been building in other cities to establish police unions. SLATER, 14. 90 Id. 91 SLATER, chapter 6. 92 FOGELSON, 193-196; Local 201, Am. Fed’n of State, County and Mun. Employees v. City of Muskegon, 120 N.W.2d 197, 199 (Mich. 1963) (reasoning that a police officer cannot join a union because he is “required by law and invariably becomes a neutralizer in controversies involving the right of public assemblage, neighborhood disputes, domestic difficulties and strikes, between labor and management” and “his actions in these instances must be governed by his oath of office”); Kelling & Kliesmet, Police Unions, at 196. One of the authors, Kliesmet, “was harassed, arrested, and eventually fired for his union activities while a member of the Milwaukee Police Department. (Both the arrest and firing were later overturned.)” Id. 93 SLATER, 96; FOGELSON, 205. 94 Kevin M. Keenan, Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 196–97 (2005). 2016] POLICE UNIONS 22 federal court decisions limiting police officers’ investigatory and arrest powers. 95 Officers also did not have protection within the department when they were investigated or accused of misconduct and felt they had no way to present grievances to management. Furthermore, they feared that civilian review boards would scapegoat individual rank and file officers for practices that management encouraged or even required. 96 Then as now, officers believed that discipline was meted out only to those who criticized management. 97 Not surprisingly, unions representing rank and file officers negotiated for contractual protections against discipline and lobbied legislators to incorporate these protections in legislation, including Law Enforcement Officers’ Bill of Rights (LEOBORs). 98 They sought to protect officer autonomy, effectiveness, and (they thought) safety by opposing constitutional criminal procedure restrictions on police conduct and by blocking civilian oversight of police discipline.99 The legacy of the 1960s were collective bargaining agreements and LEOBORs that made it difficult to investigate and punish officers, and that limited civilian oversight, all of which can impede reform efforts, as we discuss in Part II. Police union contracts contain provisions regarding wages, benefits, and discipline. 100 Police officers, like all government employees, have statutory and constitutional rights to fair treatment in personnel decisions.101 However, police protection exceeds that provided to workers in other industries. In addition to the rights enjoyed by all government employees, 95 Id. Id. at 196, citing HERVERY JURIS & PETER FEUILE, POLICE UNIONISM 20-21 (1973). 97 Id. at 196-7, citing HERVERY JURIS & PETER FEUILE, POLICE UNIONISM 138 (1973). These punishments included punitive transfers. 98 See Kate Levine, Police Suspects, 116 COLUM. L. REV. 1197 (2016) (describing law enforcement officers’ bill of rights protections against interrogation and other investigative techniques commonly used for other people suspected of wrongdoing and arguing that the protections should be extended to all criminal suspects rather than eliminated for police); Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U. PUB. INT. L.J. 185, 206 (2005) (describing protections of bills of rights). 99 Sklansky, 76. 100 Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-unioncontracts.html. 101 Nonprobationary government employees enjoy a constitutional due process right to notice and some form of hearing before being fired from a job. Roth v. Board of Regents, 408 U.S. 564 (1972); Perry v. Sinderman, 408 U.S. 593 (1972). However, if an employee does not have an expectation of continued employment, he is not entitled to due process before termination of the job. Bishop v. Wood, 426 U.S. 341, 345 (1976) (city police officer held his position at will and was therefore not entitled to due process before termination). 96 23 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX police officers in at least sixteen states have special statutory protections from LEOBORs. 102 And even in states or cities that have not enacted a LEOBOR, similar provisions are included in union contracts. 103 Police officers today belong to a wide array of organizations to represent their interests. Although in labor law a union is a membership organization that exists to represent its members for purposes of collective bargaining over conditions of employment, we use the term union somewhat more loosely to capture the full range of police labor organizations. Some police unions today are affiliated with either the Teamsters or with the AFLCIO’s International Union of Police Associations, and these typically have been certified or recognized as representing all police employees within a bargaining unit. 104 Other independent police unions developed from local benevolent associations, protective leagues, federations, lodges, or international police associations, and these are typically not affiliated with the rest of organized labor in the United States and may or may not be certified as the exclusive representative of the officers on whose behalf they negotiate. 105 Some officers also belong to identity-based police organizations, which sometimes have close relationships to their civilian counterparts, and these identity or affinity groups do not have the legal right to bargain collectively on behalf of their members (as a labor union does) but they may nevertheless play an informal role in speaking for their members both within the department and publicly. 106 Police unions and identity-based groups within police departments may jointly take positions on matters of department policy, but sometimes, they compete with each other for rank-and-file support and solidarity. 107 As a matter of labor law in most states, unions are selected and govern on a majority rule principle. Under that principle, the union chosen by the majority of employees in a job classification or department (what is generally known as a bargaining unit) is the exclusive representative of all the 102 See Kate Levine, Police Suspects, 116 COLUM. L. REV. 1197 (2016) (describing law enforcement officers’ bill of rights protections against interrogation and other investigative techniques commonly used for other people suspected of wrongdoing and arguing that the protections should be extended to all criminal suspects rather than eliminated for police); Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U. PUB. INT. L.J. 185, 206 (2005) (describing protections of bills of rights). 103 Levine, Police Suspects, 115 COLUM. L. REV. at 1224. 104 Sklansky, at 181, 183 105 Sklansky, at 183 106 Sklansky, 181 107 Sklansky, 181 2016] POLICE UNIONS 24 employees in that unit. 108 The purpose of majority rule and exclusive representation is to strengthen and legitimize the employee representative by enabling it speak with one voice and to enable the employees, within their union, to agree on priorities and resolve differences. 109 Law limits the ability of the majority representative to sacrifice the interests of the minority by imposing a duty of fair representation, which requires the union to represent all employees in the unit fairly and competently and prohibits any form of arbitrary action or invidious discrimination against individuals or the minority. 110 When police officers gained the right to unionize and bargain collectively in the 1960s, union leadership embraced the language of professionalism that police management and an earlier generation of police reformers had used, insisting that the purpose of the police was to control crime. 111 However, police unions responded to the extensive rules and regulations controlling rank and file behavior by negotiating their own set of rules and regulations to protect rank and file officers from arbitrary exercises of management power. 112 Unions challenged exercises of managerial prerogative through grievance arbitration, and protected members’ economic interests and working conditions (wages and benefits; job security; hiring, retention, promotion, and disciplinary processes; access to “good” jobs, shifts, assignments, overtime). As one labor lawyer opined, “It is nearly impossible to have a situation in which a creative police organizer cannot find a rule, regulation, guideline, budget provision, benefit program rule, or personnel procedure which cannot be exploited to significantly increase the rights and benefits of working officers.” 113 Professionalism era reforms, with 108 See generally Clyde Summers, Bargaining in the Government’s Business: Principles and Politics, 18 U. TOLEDO L. REV. 265 (1987) (explaining the principle of exclusive representation and questioning certain aspects of its viability). 109 See, e.g., Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975) (explaining the purposes of the principle of exclusive representation). 110 See Catherine L. Fisk & Benjamin I. Sachs, Restoring Equity to Right to Work Law, 4 U.C. IRVINE L. REV. 857, 874 (2014) (arguing that if unions cannot charge all represented employees for services, the union should be relieved of the legal obligation, imposed by the duty of fair representation, to provide contract negotiation and administration services to employees who refuse to pay). 111 Kelling & Kliesmet, Police Unions, at 198, citing Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 197 (1990). 112 Id. at 197, citing Michael T. Liebig, Police Unions and the Law,” 4 Police Union News at 2 (8, August 1993). 113 Id. Unions began to use various rules to exercise “countercontrol,” including “the Constitution; federal statutes; state statutes and regulations; city ordinances; internal budget and personnel regulations and directives; Equal employment Opportunity rules and affirmative action plans and court decrees; public disclosure, privacy, and administrative law rules; general orders; squad or division rules, directives, and guidelines; and personnel records.” Id. 25 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX its host of controls, not only helped spur the creation of police unions 114 but also “were directly responsible for the shape and functions of police unions as well.” 115 Police collective bargaining agreements look in part like the labor agreements negotiated by a wide range of public and private sector unions. They contain provisions governing economic terms of employment, including wages, hours, sickness and vacation leave, pensions, health insurance, death benefits, and so forth. There are typically detailed provisions governing overtime compensation, payment when called to testify, and compensation for purchasing uniforms, and the right to have protective equipment like bullet-proof vests. They prohibit discrimination on the basis of union membership, race, religion, gender, and so on, and generally require just cause for discipline and discharge. They create a grievance process usually culminating in arbitration. Given the history of rank and file concern about arbitrary management discipline for violations of detailed rules, it is unsurprising that many union contracts include quite specific provisions protecting police officers in discipline cases. But union contracts have little to say about how police officers actually do their job. This is in part because police unions like other public and private sector unions in the 1960s focused on gaining the power to bargain over economic issues, promotions, and discipline. 116 But in part it is because state legislatures, courts, and public employee relations boards insisted that it is the province of management to decide the mission and methods of public work, and the only things on which labor has a right to negotiate are pay, promotion, and protection against discipline. That police unions adopted a narrow conception of the union’s role in collaborating with management about policing policy and tactics is not surprising, given the dominant conception of policing and the business unionism of the mid-twentieth century. The top-down hierarchy in police departments allowed for little input by the rank and file, and labor law and labor policy excluded employees from meaningful voice in the goals of the organization. An example is California’s Meyers-Milias-Brown Act (MMBA), the statute governing police labor relations. The scope of the union’s right to negotiate and represent public employees includes “all matters relating to employment conditions and employer-employee relations, including, but not 114 Id. at 196; Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996). 115 Id. at 193; see also Sklansky, 77. 116 Kelling & Kliesmet, Police Unions, at 197; Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminal-justice/2016-02-solidarity-in-blue; Sklansky, at 185 2016] POLICE UNIONS 26 limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” 117 The two clauses conflict— read alone, they could respectively “encompass practically any conceivable bargaining proposal” or “swallow the whole provision for collective negotiation and relegate determination of all labor issues to the city's discretion.” 118 Even if an employer's action or policy has a significant and adverse effect on the employees’ wages, hours, and working conditions, the employer may be exempt from the duty to meet and confer with the union if the subject is the “merits, necessity, or organization” of government action. 119 Added in 1968, the limitation on the union’s right to confer over these matters “was intended to “forestall any expansion of the language of ‘wages, hours and working conditions' to include more general managerial policy decisions.’” 120 Police officers in California, therefore, are able to bargain for the right to consult with a union representative or attorney prior to making a report concerning any shooting incident involving an officer. In Long Beach Police Officer Association v. City of Long Beach (Long Beach), the City Police Chief “issued a directive prohibiting the City’s police officers who became involved in a shooting from consulting with a representative of the [association] or an attorney prior to the filing of a written or oral report concerning such incident” because previous instances had a resulted in interference with the Department’s investigation. 121 The court found the right to consult was a “working condition” under the collective bargaining agreement rather than a matter reserved for management which would permit the department to change practices without prior written agreement or compliance with statutory meet and confer procedures. 122 However, although a police officer is allowed to have a representative after a shooting has occurred, policies governing the use of force before a shooting are not subject to bargaining under the MMBA. 123 In San Jose Peace Officer's Assn. v. City of San Jose, a California appellate court found that the police chief’s issuance of a new policy governing the use of force without meeting and conferring with the association did not violate the 117 Cal. Gov't Code section 3504 (West). Int'l Ass'n of Fire Fighters, Local 188, AFL-CIO v. Pub. Employment Relations Bd., 51 Cal. 4th 259, 272 (2011) (Fire Fighters Local 188). 119 Cal. Gov’t Code section 3504; Claremont, 39 Cal. 4th at 631. 120 Claremont, 39 Cal. 4th at 631. 121 Long Beach Police Officer Assn. v. City of Long Beach, 156 Cal. App. 3d 996, 999 (1984) (Long Beach). 122 Id. at 1011. 123 San Jose Peace Officer's Assn. v. City of San Jose, 78 Cal. App. 3d 935 (1978). 118 27 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX MMBA. Although a change on the policy governing a police officer’s ability to “fire at a suspected criminal” has “some effect” on safety, it is “equally true” that the “use of force policy is as closely akin to a managerial decision as any decision can be in running a police department, surpassed only by the decision as to whether force will be used at all. . . . [W]e can imagine few decisions more ‘managerial’ in nature than the one which involves the conditions under which an entity of the state will permit a human life to be taken.” 124 Police unions have been excluded under this law from involvement in certain proceedings of civilian review commissions. In Berkeley Police Association v. City of Berkeley, Berkeley established, through an initiative, a civilian police review commission.125 The function of the commission was to “provide for community participation in setting and reviewing police department policies, practices, and procedures and to provide a means for prompt, impartial and fair investigation of complaints brought by individuals against the Berkeley Police Department.” 126 The chief of police announced that a member of the commission would attend department Board of Review hearings during which bureau reports were discussed and send a representative of the department to each police review commission trial board meeting who would “take with him a copy of any bureau reports that had been prepared concerning individuals who were being investigated by the police review commission and answer questions of commission members concerning the department's position on the complaints.” 127 The court noted that the police association was fundamentally challenging the “announced policies” of their chief officer “concerning police-community relations,” and “these policies clearly constitute management level decisions which are not properly within the scope of union representation and collective bargaining.” 128 Although a police association is able to bargain for the right of an officer to consult with a union representative or attorney prior to making a report concerning any shooting incident involving the officer (discussed above), 129 a police department can prevent officers “huddling” together before making reports. In Ass'n for Los Angeles Deputy Sheriffs v. Cty. of Los Angeles (ALADS), the Department instituted an anti-huddling policy, where officers would gather in groups of two or more with a union representation (i.e., “two or more deputies consulting at the same time with the same legal 124 Id. at 948-46. Berkeley Police Ass’n v. City of Berkeley, 76 Cal. App. 3d 931, 934 (1977). 126 Id. 127 Id. at 935. 128 Id. at 937. 129 City of Long Beach, 156 Cal. App. 3d at 1011. 125 2016] POLICE UNIONS 28 counsel/labor representative”). 130 The City created a policy where individuals involved (including witnesses) could not discuss together the shooting, but still had the right to meet with counsel individually. 131 The court found that the revision had no effect on wages and hours. 132 In contrast, the court found that “the Department's express objective in implementing its policy revision was to collect accurate information regarding deputyinvolved shootings. Plainly, the purpose of the policy revision was to foster greater public trust in the investigatory process,” and was a fundamental managerial decision. 133 Finally, in a recent case, a county’s adoption of a policy not to allow deputy sheriffs to access the internal investigative file before being interviewed by an internal affairs investigator was not a working condition subject to bargaining under the MMBA. 134 While it is understandable that California, like other states, wanted to free police departments from the leverage a union might have to block reforms through prolonged bargaining and through inclusion of contract terms that could thwart new policies, the consequence of the limited duty to bargain has been perverse. As we discuss in Part IV, if employees and their union are excluded from participation in policy setting, they often feel compelled to oppose new policies for fear that the policy will be implemented punitively or unfairly as a way to discipline rank and file who are unpopular with management. In the case of police, as scholars have shown, unions become reflexively opposed to policies when they cannot participate in policy design and focus simply on protecting their members from discipline for violating the policy. Thus, both the law and the dominant theory of policing compelled union leadership to focus their attention on rectifying the abuses of management: arbitrary dismissals, scheduling, and work assignments; informal discipline; citation and arrest quotas; cronyism in promotions; and incursions into officers’ personal lives. While police unions adopted a narrow view of labor’s role in setting criminal justice policy in the workplace, apart from officer pay and discipline, they embraced a broad view of how they could advocate for police officers’ interests as labor. They do not just bargain and enforce labor agreements, they 130 Ass'n for Los Angeles Deputy Sheriffs v. Cty. of Los Angeles, 166 Cal. App. 4th 1625, 1629 (2008), as modified (Sept. 24, 2008), as modified (Oct. 6, 2008) (ALADS). 131 Id. at 1630. 132 Id. at 1644. 133 Id. 134 Ass’n of Orange Cty. Deputy Sheriffs v. Cty. of Orange, 217 Cal. App. 4th 29, 45 (2013) (County of Orange) (“Even assuming county's adoption of policy not to allow deputy sheriffs under investigation to access the internal affairs investigative file before being interviewed by an internal affairs investigator constituted a working condition . . . the policy constituted a fundamental managerial decision within the sheriff's department's freedom to manage its affairs unrelated to employment). 29 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX are involved in electoral politics, in litigation, and in the media, attacking the restrictions imposed on them by the Supreme Court, criticizing groups ranging from the Black Lives Matter movement to the Communist Party to the ACLU, and opposing civilian oversight. 135 And in advocating for police interests as labor to be protected from civilian intervention and unfair discipline, of course, they did have a substantial impact on criminal justice policy. That is, although unions did not contest management efforts to adopt the militarized style of urban policing instead of a more social service or community-oriented style, they did demand that officers be protected from discipline when that harsh style of policing resulted in civilian injuries or deaths. Police unions not only negotiated for contractual protections in the disciplinary process, they lobbied for state or municipal laws giving officers procedural protections during discipline. Police unions also actively opposed reform-oriented chiefs and civilian review boards, both for reasons of conservative and sometimes racist ideology and to protect police officers’ bread-and-butter interests, like pay, benefits, and job security. 136 In several cities, police unions have challenged police chiefs brought in to enact reforms that they consider threatening to officer safety or economic interests, or that they believe weaken public safety. Unions challenged city officials over issues like staffing and job protection. Many have taken openly partisan stands---such as recent police protests in New York---against politicians who they claim adopt policies that weaken public safety. Because police officers have long felt at risk of arbitrary or unfair discipline, they have fought hard to retain union involvement in internal investigations into employee misconduct, and therefore have stymied 135 See, e.g., Timothy D. Chandler & Rafael Gely, Protective Service Unions, Political Activities, and Bargaining Outcomes, 5 J. PUB. ADMIN. RES. & THEORY 295 (1995) (finds that electoral political activities by police and firefighter unions is a more important determinant of wages and employment levels unionization); Casey Ichniowski, Richard B. Freeman & Harrison Lauer, Collective Bargaining Laws, Threat Effects, and the Determination of Police Compensation, 7 J. LAB. ECON. 191 (1989) (finding that state laws that provide stronger bargaining rights and ensure closure to the bargaining process increase the direct effects of police unions on compensation); Sklansky, 77. 136 Sklansky, 77. “Rank-and-file organizations actually succeeded in killing off civilian review boards by the end of the 1960s, suing to invalidate Philadelphia’s Police Advisory Board, launching a successful ballot referendum to abolish New York City’s Civilian Complaint Review Board, and fighting off efforts to create similar panels in other cities. Sklansky, 77, citing Robert M. Fogelson, Big-City Police 284-86 (1977); Christopher Lasch, The Agony of the American Left 206 (1969); Jerome H. Skolnick, The Politics of Protest 274-78 (1969); John Thomas Delaney & Peter Feuille, Police, in Collective Bargaining in American Industry: Contemporary Perspectives and Future Directions 265, 301 (David B. Lipsky & Clifford B. Donn Eds., 1987); see also Stephen C. Halpern, Police-Association and Department Leaders: The Politics of Co-optation 93-99 (1974) 2016] POLICE UNIONS 30 efforts to reform police culture. 137 But unions were blocked, by labor law, by the hierarchical management structure, and by short-sighted union leaders own narrow conception of role, from adopting a more proactive and collaborative approach to management-labor cooperation over police goals and tactics. In sum, police unions for understandable reasons see their mission as protecting the interests of police officers, including protecting officers from discipline, ensuring good working conditions, protecting seniority, etc. When police union leaders defend officers involved in what appear to be egregious instances of violence toward suspects, critics assert that the solidarity that enables a union to function, and that is encouraged by the quasi-militaristic culture in many police forces, has become pathological. Whereas unions are thought by their defenders to be an institutional mechanism to create and sustain workplace democracy in other work settings, in law enforcement unions appear to be irredeemably oligarchic and implacably opposed to even modest reform and to anything that might weaken the influence of union leaders. 138 II. POLICE UNIONS AS OBSTACLES TO REFORM Police unions in New York City, Ferguson, Baltimore, Cleveland, Chicago, and other cities have, at least initially, publicly come to the defense of officers accused of shooting and killing civilians, insisting that it is important to avoid a “rush to judgment.” 139 Reponses have gone beyond offering a public defense to include fundraising for accused officers in Ferguson, Baltimore, and Cleveland, 140 and, in New York City, proclaiming 137 Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminal-justice/2016-02-solidarityin-blue 138 Id. 139 Justin George, New Online Fundraising Campaign Starts Up for Officers Charged in Gray’s Death, BALTIMORE SUN (May 6, 2015, 12:34 PM), http://www.baltimoresun.com/news/maryland/crime/blog/bs-md-ci-freddie-gray-officersfund-20150506-story.html (After the Baltimore police union’s GoFundMe site was shut down by the company because GoFundMe pages cannot benefit people charged with “serious violations of the law,” the union backed fundraising on a site devoted specifically to raising money for law enforcement officers. Union president Gene Ryan said the charges against the officers were “an apparent rush to judgment.”) 140 Id.; Sarah Parvini, GoFundMe Shuts Down Fund-Raising Page for Baltimore Police, LA TIMES, May 2, 2015), available at http://www.latimes.com/nation/la-na-gofundmebaltimore-cops-20150502-story.html) Christopher Zara, Officer Darren Wilson GoFundMe: Donations Halted As Organizers Sort Out Legal Questions, INTERNATIONAL BUSINESS TIMES (Sept. 2, 2014, 8:00 PM), available at http://www.ibtimes.com/officer-darren-wilson-gofundme-donations-haltedorganizers-sort-out-legal-questions-1676430 (GoFundMe page started by an anonymous 31 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX “[i]t is time to stop the amateur video activists” who “interfere with police operations” by recording arrests and police violence. 141 Though New York Patrolmen’s Benevolent Association (PBA) President Patrick Lynch uses extreme rhetoric in his defense of officers, refusing to publicly concede that an officer was wrong—even when the officer in question went to jail, 142 his milder statements about the role of the police union are not unusual among police union leaders. He says what most do: “Our job, as an advocate for police officers, is to speak out for them, whether it’s getting them a contract or defending them when they’re wrongfully accused, or explaining exactly how and why we do our job. That’s our role, and we proudly do it.” 143 Although it is understandable that elected union leaders come to the defense of employees accused of misconduct, the zeal and leverage that police unions bring to the defense is considerable. As a result of contractual and statutory substantive and procedural protections described in this section, the expense and hassle necessary to discipline an officer is greater than if the officer could be fired at will. This, combined with the fact that labor arbitrators sometimes reduce punishment, “makes supervisors less likely to impose disciplinary sanctions because while a supervisor faces a possible donor raised almost a half million dollars for Officer Wilson and his defense fund. The page was later taken down and replaced by a page run by a charity, Shield of Hope, which happened to share the same address with a St. Louis police union); Lorrie Taylor, Cleveland police union to raffle gun in fundraiser for officer accused of shooting teen, FOX 8, Jul. 28, 2015, available at http://fox8.com/2015/07/28/cleveland-police-union-to-raffle-gun-infundraiser-for-officer-accused-of-shooting-teen/ (Cleveland Police Patrolman’s Union came under fire for raffling off a Glock pistol to raise money for an officer accused of shooting an unarmed teenager. The Union president said no offense was ever intended and explained, “Raffling off a Glock in a police community is like raffling off M&Ms at a kid's birthday party.”). 141 NYC Patrolmen’s Benevolent Association Press Release, Pat Lynch Says 35-Second Video Doesn't Tell Whole Story and that Resisting or Interfering with Arrest is Illegal, Oct. 7, 2014, available at https://www.nycpba.org/archive/releases/14/pr141007-video.html. 142 David Firestone, The NYC Police Union Has a Long History of Bullying City Hall, QUARTZ, Dec. 23, 2014, available at http://qz.com/317338/the-nyc-police-union-has-a-longhistory-of-bullying-city-hall/; A full collection of press releases can be found on the PBA’s website: https://www.nycpba.org/archive/releases/index.html 143 Inside City Hall, PBA President Talks Reelection, Contracts, and More, NY1, Jun. 1, 2015, available at http://www.ny1.com/nyc/all-boroughs/inside-city-hall/2015/06/1/ny1online--pba-president-talks-re-election--contracts---more.html (statement appears at 2:20); Edgar Sandoval & Reuven Blau, Al Sharpton Rips Police Union President for Criticizing Man Who Taped Cops Arresting Eric Garner, NY DAILY NEWS, Aug. 4, 2014, available at http://www.nydailynews.com/new-york/nyc-crime/killed-eric-garner-distraught-article1.1890415 (quoting Lynch as saying that the Ramsey Orta, the man who caught the fatal Garner arrest on video, was demonizing” officers and was a “criminal” because he was arrested for allegedly trying to hand off a stolen gun). 2016] POLICE UNIONS 32 headache for not disciplining a misbehaving subordinate, they face a certain headache if they do.” 144 One study of discipline imposed in the Chicago Police Department in the early 1990s found that arbitrators “routinely cut in half” the severity of discipline. 145 Experience with the personnel system prompted Tom Nolan, a veteran of the Boston Police Department and professor of criminology, to say: “The number one impediment to reforming policing in the United States are police unions.” 146 Similarly, in 2016, the Chicago Police Accountability Task Force issued a report concluding that “[t]he collective bargaining agreements between the police unions and the City have essentially turned the code of silence into official policy.” 147 As explained in this Part, statutory and contractual protections for police officers do have an effect on police accountability and the transparency of police disciplinary systems. 148 For instance, collective bargaining agreements often contain provisions that protect officers accused of misconduct, shield them from civilian oversight, and limit the ability to change officers’ conditions of employment, which also makes it difficult to enact reforms such as setting up early warning systems. A. Statutory and Contractual Limits on Discipline and Transparency In the wake of extensive news coverage of and social media outrage about police shootings in 2014-2016, a group affiliated with Black Lives Matter launched a project known as Campaign Zero to draw public attention to job protections for police officers accused of misconduct. Campaign Zero compiled a database of police union contracts for over 50 American cities, including every major city and a significant number of smaller cities, by obtaining the contracts through Public Records Act requests. 149 Another 144 Seth W. Stoughton, The Incidental Regulation of Policing, 98 MINN. L. REV. 2178, 2211-12 (2014). 145 Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary? 89 J. CRIM. L. & CRIM. 215, 216 (1998). 146 Henrick Karoliszyn, Solidarity in Blue, Prison Legal News, March 4. 2016, located at https://www.prisonlegalnews.org/news/2016/mar/4/solidarity-blue/ 147 Available at https://chicagopatf.org/ 148 SAMUEL WALKER, THE POLICE IN AMERICA: AN INTRODUCTION 380 (2d ed. 1992); JOHN DECARLO & MICHAEL J. JENKINS, LABOR UNIONS, MANAGEMENT INNOVATION AND ORGANIZATIONAL CHANGE IN POLICE DEPARTMENTS 2 (New York: Springer, 2015); Samuel Walker, The Neglect of Police Unions: Exploring One of the Most Important Areas of American Policing, 9 POLICE PRACTICE AND RESEARCH 95, 101 (2008) (collecting sources and noting “it is widely believed – but not investigated or proven – that police unions stifle good management in general, innovation in particular”); Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-union-contracts.html. 149 See supra note 3; www.joincampaignzero.org. 33 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX source of recent data about police union contracts comes from a breach of the website of the country’s largest police union, the Fraternal Order of Police. Hackers apparently found and then leaked to The Guardian newspaper nearly two decades’ worth of police union contracts, apparently wanting to draw attention to contractual protections that made it more difficult to discipline officers accused of misconduct. 150 A third, and very important, source of police union contracts was compiled by Professor Stephen Rushin and which we became aware of only after this article was in press. 151 Several contractual or statutory job protections are potentially problematic. Some slow down misconduct investigations, prevent public access to complaints and disciplinary records, and enable the destruction of complaints and disciplinary records after a negotiated period of time. 152 Others are procedural protections for officers during interrogation, limits on civilian oversight, short statutes of limitation for misconduct charges against officers, and restrictions on which complaints will be investigated, including refusing to investigate anonymous complaints. In the twenty or so states with state-wide statutory LEOBORs, many of these protections exist as a matter of state law and thus even elimination of the police union or its contract would not immediately change the law unless the statute were repealed as well.153 Here, we highlight some of the contractual and statutory protections that pose obstacles to reforms for purposes of showing that the power of police unions to negotiate over terms of employment and disciplinary processes, which is at the core of the collective bargaining process in any unionized workplace, will be essential to consider in any serious approach to police reform. Timing and Conduct of Interrogation. Most collective bargaining agreements and state LEOBORs outline the process for investigating allegations of officer misconduct, although the process varies. Maryland, for example, provides that no officer may be questioned without having been given the opportunity to secure legal counsel and gives officers ten days to do so. 154 This provision has been criticized for giving officers plenty of time to delay interrogations and to concoct an account of the incident that 150 George Joseph, Leaked Police Files Contain Guarantees Disciplinary Records Will Be Kept Secret, The Guardian, Feb. 2, 2016, available at http://www.theguardian.com/usnews/2016/feb/07/leaked-police-files-contain-guarantees-disciplinary-records-will-be-keptsecret 151 See Rushin, supra note 8. 152 Id. 153 Aziz Huq & Richard McAdams, Litigating the Blue Wall of Silence: How to Challenge the Police Privilege to Delay Investigation, at 7, n. 32 (2016) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712967 (counting 20 LEBORs). 154 Md. § 3-104(j)(2). 2016] POLICE UNIONS 34 exonerates them officer. 155 Other provisions on officer interrogation include regulation of the location, length, and timing of interrogations. Handling of Personnel Files. Officer personnel files contain records of complaints and the outcomes of them. Issues concerning those files include whether the public should have access to any of it and, if so, what, and also whether records should be expunged after a period of time and, if so, which records and what length of time. Proposed legislation that failed to pass in California in 2016 would have increased public access to police disciplinary records that have been restricted by state law and limited by court decisions. 156 The bill would have required public access to records of all investigations into uses of force that result in deaths or serious injury. The records would be open even if the officer involved eventually was found to have complied with a department’s policy. Currently, the LAPD only releases summaries, and some departments don’t even provide a summary. The bill would also have required that other reports and findings be made public when officers are found to have engaged in misconduct that violates the legal rights of the public. A similar bill failed to pass in 2007 after dozens of peace officers testified that public access to police disciplinary files would endanger lives. Yet, according to a news report, there has been no reported case where an officer was harmed based on release of this information. 157 Other police departments, including Baltimore, similarly do not release notice of disciplinary actions and their disposition.158 In contrast, at least ten states including Texas and Florida already provide public access to investigative details, findings, and disciplinary actions when officers are found to have acted improperly. Dallas has since 2014 maintained websites listing every officer-involved shooting and every officer use of force in response to resistance since 2008 and the sites list the location, the name of the subject, whether the subject was armed, and the name or badge number, race, and gender of the officers involved. 159 155 Samuel Walker, The Baltimore Police Union Contract and the Law Enforcement Officers’s Bill of Rights: Impediments to Accountability (May 2015), at 3. 156 SB-1286 Peace Officers: Records of Misconduct, available https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB1286. 157 Patrick McGreevy, Lawmaker Proposes Giving Public Access to Police Shooting and Misconduct Cases, LA Times, Feb 21. 2016, available at http://www.latimes.com/politics/lapol-ca-cop-records-story.html 158 Article 16.K, Baltimore City Police contract. 159 Dallas Police Public Data – Officer Involved Shootings City of Dallas, https://www.dallasopendata.com/Police/Dallas-Police-Public-Data-Officer-InvolvedShootin/4gmt-jyx2 (last visited July 8, 2016); Police: 2015 Response to Resistance, https://www.dallasopendata.com/dataset/Police-2015-Response-to-Resistance/594v-2cnd. See Leon Neyfakh, A Police Department That’s Embraced Reform, SLATE.COM, Jul. 8, 2016, available at 35 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX The challenge with public access to disciplinary records is balancing transparency with protection of legitimate privacy and safety interests of police officers. From one point of view, transparency is clearly desirable as the public should be able to monitor how public employees are disciplined, and this is especially important to restoring public trust in police. 160 From another, the value of transparency is a function of the reliability of the records. Police officers who feel that discipline is used to punish officers or is meted out based on favoritism or for other non-merits reasons would conclude that public accessibility of the records will only compound the harm of the unfair discipline by stigmatizing an officer and might facilitate reprisals if the officer’s name and home address. Conversely, officers who feel that discipline is fair might still be reluctant to allow their name to be publicized but at least recognize that public awareness is not unreasonable or grossly unfair. As for expungement, a large number of cities allow for expungement of complaints. Baltimore’s union contract allows officers to request expungement of formal complaints that are found to be unfounded or as to which the officer was exonerated after three years. Some policing scholars assert that expungement of unfounded complaints is undesirable because such records are part of early intervention systems created by DOJ consent decrees that create a computerized record of multiple performance indicators, including uses of force, citizen complaints, that allow supervisors and oversight entities to have a full picture of every officer’s job performance. Civilian Complaints and Oversight. Some LEOBORs and contracts impose short statutes of limitations on the prosecution of discipline. In Maryland, for example, no complaint alleging brutality will be investigated or be the basis of discipline if filed more than 90 days after the alleged incident. 161 Others treat citizen complaints differently that complaints initiated by other officers. 162 Other provisions limit civilian oversight. For many police unions, limiting civilian oversight is one of their most important issues. Misconduct Investigations. Several types of contractual and statutory provisions governing investigations have been criticized. One concerns the timing of such investigations and who should conduct them. Other constellations of concerns focus on control of the hearing boards that determine whether officers have committed misconduct. As noted above, in http://www.slate.com/articles/news_and_politics/crime/2016/07/the_dallas_police_departm ent_has_been_a_model_for_reducing_officer_involved.html?sid=5388f4b9dd52b8e41101 16f2&wpsrc=newsletter_slatest (last visited July 8, 2016). 160 Walker, Baltimore Police Union Contract, 7. 161 § 3-104(c)(2) 162 Austin, Cleveland, Columbus, Houston, San Antonio, San Diego, Seattle 2016] POLICE UNIONS 36 Los Angeles in the decades before the Rampart scandal, rank and file officers believed that the Board of Rights was controlled by the chief who used it to punish whistleblowers and dissenters. In Baltimore, perhaps for a similar reason, the union negotiated a contractual provision requiring that one member of every hearing board be a peer officer of the accused, but a critic insisted that “including a peer officer as a member of the Hearing Board serves to protect misconduct” because “giving the rank and file a direct voice in disciplinary investigation … necessarily lowers the standards for police conduct” inasmuch as officers have “a vested interest in shielding all officers from meaningful investigations and discipline.” 163 Others provisions concern whether the public should receive notice of the disposition of investigations. The provisions highlighted above can be obstacles to reforms in that they make it harder for supervisors, civilian oversight boards, and the public to determine the nature and extent of police misconduct, to develop early intervention systems to help officers who are at risk of committing future abuse, and to remove officers who have committed egregious misconduct. Police unions, however, have defended all of these provisions. The Fraternal Order of Police, for example, said they are necessary to protect officers from unfounded citizen complaints. 164 As former President of the Federal Agents’ Police Benevolent Association and the founder of the National Police Defense Foundation, a non-profit which provides legal services to the law enforcement community, put it: “What is happening now is police are secondguessing their instincts and training they have because they’re scared to get indicted, that they may have to go to jail for doing their job.” This alleged reluctance to do the job, which police officers call the Ferguson Effect, is the latest iteration of a longstanding argument that unions are necessary to protect police from the anti-police rhetoric. As one police officer said, “If it wasn’t for the unions trying to advocate for our police officers, no one would.” 165 As we explain further in Parts III and IV, police unions have fought hard for many of these procedural and substantive protections because they do not trust the process by which policies are adopted and implemented. But, we argue, reform will not be accomplished simply by eliminating job protections, even if that were politically feasible. Nor will reform be accomplished simply by involving the public in negotiating over job protections, at least so long as the rank and file retain the collective will to 163 Walker, Baltimore Police Union Contract, at 5. Campaign Zero also calls for eliminating police officers from disciplinary boards. 164 Henrick Karoliszyn, Solidarity in Blue, in The Crime Report, Inside Criminal Justice, available at http://www.thecrimereport.org/news/inside-criminal-justice/2016-02-solidarityin-blue 165 Id. 37 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX resist reforms and so long as discipline is subject to grievance arbitration, and so long as negotiating disputes are subject to interest arbitration. And it is politically infeasible (and may well be unwise) to eliminate a process to appeal discipline. Rather, police rank and file need to be involved in improving police practices, and that involvement very likely requires the cooperation of some kind of officer labor representative. B. Other Limits on Reform 1. Changing Conditions of Employment In addition to protection against discipline, accountability, and transparency, many states have laws that require management to collectively bargain over any changes to conditions of employment. 166 This requirement can also stymie reform efforts. For instance, federal law empowers the Department of Justice to bring structural reform litigation against police departments engaged in a “pattern or practice” of civil rights abuses. 167 Most of the investigations conducted by the Department of Justice have resulted in consent decrees that are approved and overseen by federal courts. One investigation of 17 of these consent decrees negotiated between 1997– 2016 found that in at least seven of them, the union contract with the city hindered reforms contained in the consent decree. 168 Unsurprisingly, unions have filed grievances when these reforms change working conditions. In Seattle, for instance, the union filed a lawsuit in 2013 to block the reforms contained in the DOJ consent decree with the city, 169 arguing that “certain topics that have long been subjected to bargaining—including conditions for employment…could be severely curtailed by the city's proposed police reform plan.” 170 The plan included provisions that the Seattle Police Department would be monitored to determine “whether all use of force is reported...tracked, and properly classified, and thoroughly and objectively investigated and reviewed to a 166 Id. 42 U.S.C. 14141. See generally Barbara A. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453 (2004); Rachel Harmon, The Problem of Policing, supra; Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. 1383 (2015). 168 Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-unioncontracts.html. 169 Cienna Madrid, Seattle Police Union Files Lawsuit to Block Police Reform Plan, Mar. 11, 2013, The Stranger, available at http://slog.thestranger.com/slog/archives/2013/03/11/seattle-police-union-file-lawsuit-toblock-police-reform-plan 170 Id. 167 2016] POLICE UNIONS 38 reasonable and unbiased conclusion” and “whether disciplinary results on founded complaints reflect the seriousness of the underlying event... with biased policing, excessive force, failure to report force, or dishonesty meriting appropriate discipline.” 171 The lawsuit asked the court to “permanently block the city and court monitor from making any changes to police officers' wages, hours, or working conditions.” 172 Consent decrees between local governments, the Department of Justice and police departments often include language providing that any reforms can only occur to the extent that they do no conflict with the union contract. 173 These provisions can delay or permanently hinder reform efforts. 2. Union Structure Unions are run by an elected President and Board of Directors. In large departments, the individuals holding these full-time paid positions control a multi-million dollar budget amassed from union dues. This gives them enormous power to influence public policy because they can donate a portion of these funds to politicians viewed as friendly to their interests. A case in point is Seattle. The Seattle Police Officers’ Guild (SPOG), the union of rank and file officers, endorsed Ed Murray for Mayor in 2013 and contributed $15,000 to his campaign. 174 Upon his election, one of his first acts was to demote the interim chief of the department, a man who had enacted numerous reforms that had been praised by the federal judge monitoring the DOJ consent decree. 175 Additionally, an assistant chief who had also been praised for his efforts to reform the culture of the police department was also pressured to retire. 176 The Mayor then appointed the former vice president of SPOG, Harry Bailey, as interim police chief. Bailey immediately attempted to 171 Id. This occurred prior to Smith taking office in 2014. Id. 173 Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-unioncontracts.html. For instance, the consent decree between the DOJ and Pittsburgh in 1997 includes the language, “Nothing in this Decree is intended to alter the collective bargaining agreement between the City and the Fraternal Order of Police.” Id. 174 Ansel Herz, Amid Contract Negotiations, Seattle Police Union Claims It’s Under Attacy by Black Lives Matter Activists, Dec. 3, 2015, available at http://www.thestranger.com/blogs/slog/2015/12/03/23230986/amid-contract-negotiationsseattle-police-union-claims-its-under-attack-by-black-lives-matter-activists 175 Dominic Holden, Reform in Reverse, Apr. 16, 2014, available at http://www.thestranger.com/seattle/reform-in-reverse/Content?oid=19281433 176 Id. 172 39 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX overturn misconduct findings of numerous officers found guilty of using excessive force. 177 The perception that SPOG captured the Mayor exists not only amongst reformers, but also amongst some members of the rank and file. One officer opined that the former Chief and assistant Chief who the Mayor forced out were "people who have a deep institutional knowledge of the organization, have been there a long time and earned their way to the top, and have been chipping away at deficiencies for three years... After a long struggle to make this a better organization, boom, they are all gone. You bring in new people who are less experienced, and you give them the same task, but you have erased that last few years of work. .... There is an atmosphere of fear." 178 Another officer, who wanted to remain anonymous to avoid the possibility of retribution, stated, "If the people who have been opposing the federal court monitor and reform are elevated,…[t]here is a risk in working hard to achieve reform. It sends a message that is, at best, confusing about whether they want reform to be successful. Why would you put the fox in charge of the henhouse? … Any risk they take may piss off the folks who are in charge. I think a lot of us were quite stunned…. The mood was shock— complete shock—because everyone who was involved in reform was gone or buried. People just stopped talking.” 179 These quotes also reveal how union leadership can stymie reform by stifling the voices of rank and file members who may support reform efforts. The perception that the Mayor is in bed with the union and his actions in demoting and forcing out individuals who were working with the Department of Justice to institute reforms created fear, stifled more progressive voices amongst the rank and file, and made them reluctant to engage in reformoriented efforts. Similar stifling of rank and file voices occurred in San Francisco, according to a Blue Ribbon Panel appointed by the District Attorney after it was discovered that members of the police department had exchanged racist and homophobic text messages. Among the panel’s findings was that the union dissuaded officers from speaking to the panel and many who did speak to the panel did so anonymously because they feared retaliation from the union and had concerns about their physical safety. 180 177 Ansel Herz, Amid Contract Negotiations, Seattle Police Union Claims It’s Under Attacy by Black Lives Matter Activists, Dec. 3, 2015, available at http://www.thestranger.com/blogs/slog/2015/12/03/23230986/amid-contract-negotiationsseattle-police-union-claims-its-under-attack-by-black-lives-matter-activists Ultimately, he was unable to do so because his actions caused a scandal. Id. 178 Dominic Holden, Reform in Reverse, Apr. 16, 2014, available at http://www.thestranger.com/seattle/reform-in-reverse/Content?oid=19281433 179 Id. 180 Panel Report, at 8, 9, 143, available at http://sfblueribbonpanel.com/. 2016] POLICE UNIONS 40 The union can also hinder reforms by capturing police management, thereby eliminating any checks and balances with the department. This arguably occurred in Seattle when the former vice president of the union was elevated to the position of police chief. In San Francisco, the Blue Ribbon Panel concluded that there was virtually no distinction between the command staff of the department and the police officer’s union. 181 This made it difficult to engage in reforms since the union was essentially running the department and it had historically taken anti-reformist positions. 182 Finally, one way for union leadership to maintain their power and influence is to convince rank and file officers to join the union and pay union dues. As such, they have to justify why the union is important for officers and one persuasive way to do so is to encourage the rank and file to believe that they cannot trust management and that management is out to get them. This narrative is easy to maintain since the hierarchical structure of most police departments limits contact between command staff and the rank and file. In sum, collective bargaining agreements, including seniority systems and union power over conditions of work and the structure and incentives of police unions can all be barriers to reform. 183 However, this does not mean that unions and rank and file officers always find reform efforts problematic. Next, we will discuss evidence that unions can be important partners in reform efforts. III. POLICE UNIONS AS AGENTS OF POLICE REFORM In theory, police unions could be agents of reform in at least two ways. First, as representatives of the line officers who have daily contact with the community whom the police are supposed to protect and serve, they could help improve the relationship between police and citizens, help ensure that force is used wisely and prudently, and that arrests are made and citations issued only when doing so actually improves life for the community. Second, they could become intermediaries to convey the concerns of line personnel to management in a way that will improve policing. But to do either of those, 181 Id. at 143. Id. 183 Sklansky, 82 (“the growing power of police unions made it more difficult for departments to explore new strategies of collaborative decision making that circumvented seniority systems or bypassed the union hierarchy.”); JEROME K. SKOLNICK & DAVID H. BAYLEY, THE NEW BLUE LINE: POLICE INNOVATION IN SIX AMERICAN CITIES 160 (1986); SAMUEL WALKER, THE POLICE IN AMERICA: AN INTRODUCTION 380 (2d ed. 1992) (“The possibilities for changing police organizations are limited by structural features such as civil service and police unions.”). 182 41 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX unions would have to develop genuine and sustained enthusiasm for improving the quality of policing. 184 Given the prevailing wisdom that police unions are irredeemably opposed to reforms, it might surprising to learn that while unions fight hard to ward off discipline for some members, 185 doing so does not necessarily equate with an anti-reformist position when it comes to matters unrelated to officer discipline. There is evidence of police unions occasionally working to facilitate reforms that improve the quality of policing. Here we offer a few examples and then draw some generalizations from them. A. Examples of Police Unions Being Agents of Reform A number of cities at various points over the last 50 years have implemented reforms to reduce police violence and improve policecommunity relations. All of them involved the cooperation of the rank and file, and many involve active cooperation with the union. During the 1960s and 70s, the Oakland police department was struggling with violent encounters with citizens. 186 Chief Charles Gain was a reformist chief who had strong support from the Black community, but not much from the union. He pushed through many reforms despite opposition from the union. Many officers resigned under his leadership 187 and the newly formed union issued a vote of no confidence. 188 Despite his strong leadership style, Chief Gain created the Violence Prevention Unit with the help of social psychologist Hans Toch, to deal with officers who were violence prone. 189 The Unit diverged from the otherwise hierarchical organization of the police department and Chief Gain maintained a hands-off approach and allowed the Unit to function independently. 190 The Unit was based on two assumptions. First, that patrol officers could control other officers and second, that those officers who had been violent in the past would be in the best position to help officers who were having problems in the 184 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 210 in Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996). 185 Max Rivlin-Nadler, Police Union Turns Its Back on Cop Who Killed Innocent Man in Brooklyn Stairwell, Jan. 28, 2016, available at http://gothamist.com/2016/01/28/akai_gurley_liang_trial.php 186 See Hans Toch & J. Douglas Grant, Police as Problem Solvers (1991) for an in depth discussion. 187 Sklansky, Policing from the Bottom Up, at 160-61. 188 Id. at 161. 189 Kelling & Kliesmet, Police Unions, at 207 (summarizing the findings of Toch & Grant, Police as Problem Solvers (1991)). 190 JAMES ISENBERG, POLICE LEADERSHIP IN A DEMOCRACY: CONVERSATIONS WITH AMERICA’S POLICE CHIEFS 92 (2009). 2016] POLICE UNIONS 42 present. The Unit was successful in two ways – officers participated with great enthusiasm and caring and the work of the panel reduced violent confrontations between the police and citizens. As with many such reforms, however, it was discontinued due to department budget cuts. 191 And almost as soon as it was, police violence problems recurred. 192 Another example is from Milwaukee in the 1960s and 70s. Despite the fact that the police chief, Harold Brier, had no interest in improving relations with the black community, the union saw things differently. The union recognized that its members were on the street as line officers and that they were the ones who suffered from the antagonism from the black community. So the union organized meetings with citizen groups using community relations techniques then in vogue. Like the Oakland experiment, however, the program soon faded. In Milwaukee, unlike in Oakland, the department never formalized the program and never made funds available to reimburse officers for time spent with citizen groups. While the government Law Enforcement Administration Assistance (LEAA) program would fund police departments to develop community relations programs, it would not fund unions. In the years since, LEAA has been replaced by several funding bureaus within the Justice Department, but these new bureaus still will not fund union projects. 193 Occasionally, police unions have formed alliances with civil rights leaders or their organizations. In Los Angeles, the Police Protective League (“a notoriously inward-looking organization”) commissioned a report by law professor and civil liberties activist Erwin Chemerinsky. They did so because the union’s members feared reprisals by the controversial new chief of police, Bernard Parks, an African-American chief of police whom some League leaders believed would draw the wrong lessons from a corruption scandal in the LAPD’s Rampart Division. 194 In Newark, New Jersey, union president James Stewart helped the Department of Justice during its investigation of the police department. According to him, the “union’s attitude was ‘come on in,’” and it helped the Justice Department uncover problems within the police department, including “frequent pedestrian stops that violated residents’ civil rights three 191 JEROME H. SKOLNICK & DAVID BAYLEY, THE NEW BLUE LINE: POLICE INNOVATION IN SIX AMERICAN CITIES 151-52 (1986). 192 HANS TOCH & J. DOUGLAS GRANT, POLICE AS PROBLEM SOLVERS 85 (1991) 193 Kelling & Kliesmet, Police Unions, at 208. Two years later, the PPLs efforts to oust Parks triggered a decertification drive by dissenting officers supported by the Teamsters; in response the PPL joined the IUPA.” Sklansky, at 183. “The PPL had earlier supported Chemerinsky’s successful bid to serve on the LA Charter Reform Commission.” Sklansky, 182, n. 114. 194 43 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX out of every four times they occurred.” 195 Stewart even indicated that he “approves of DOJ-mandated reforms related to the department’s officer training and community relations.” 196 Simultaneously, however, Stewart strongly opposed any reforms that would create a civilian review board. 197 In fact, the union has threatened to bring a lawsuit, arguing that changes to officer discipline must be part of collective bargaining. 198 In Los Angeles, the LAPD created a Community Safety Partnership unit that operates in some of the most dangerous and violent housing projects. 199 The officers in the unit patrol the neighborhoods on foot and know residents by name. They also earn the trust of the community by providing social services to residents as well as participating in neighborhood activities. Additionally, unlike the ubiquitous practice of promoting officers based on the numbers of arrests they make, officers in this unit are rewarded for diverting people from the criminal justice system and fostering positive relationships in the community. While it is unclear how much the union was involved in these efforts, it did not file any grievances to stop the program or dissuade rank and file officers from participating in it. Surprisingly, given the discussion in Part II.C above, the experience in Seattle also provides an example of how unions can work to facilitate reforms. In 2014, after some of the events discussed in Part II.C, Ron Smith was elected as the new President of SPOG. During his time in office from 2014-2016, SPOG continued to vociferously defend and protect officers who were accused of misconduct. 200 However, Smith simultaneously worked closely and collaboratively with the new Police Chief, Kathleen O’Toole, and with reformers outside the department, to implement DOJ mandated reforms. The consent decree between the city and the Department of Justice, which was in place for two years by the time Smith was elected, required the adoption of extensive reforms to curb excessive force and racially biased policing. 201 In a move that was remarkable to outside observers, Smith told 195 Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-unioncontracts.html. 196 Id. 197 Id. 198 Id. 199 Charlie Beck & Connie Rice, How Community Policing Can Work, NEW YORK TIMES, Aug. 12, 2016, available at http://www.nytimes.com/2016/08/12/opinion/howcommunity-policing-can-work.html?emc=eta1&_r=0. 200 Ansel Herz, Seattle Police Union Says Contract Violation Prevents SPD from Firing Officer Cynthia Whitlatch, Sep. 3, 2015, The Stranger, available at http://www.thestranger.com/blogs/slog/2015/09/03/22808730/seattle-police-union-sayscontract-violation-prevents-spd-from-firing-officer-cynthia-whitlatch 201 Steve Miletich, Seattle Police Union President Says He Quit over Facebook Post before His Board Tried to Fire Him, The Seattle Times, Jul. 13, 2016, available at 2016] POLICE UNIONS 44 his membership that bias free policing was important and if they didn’t like it, they could “leave and go to a place that serves [their] worldview.” 202 This is from the same union that had, in 2010, “described efforts to combat racial profiling as ‘socialist policies’ from ‘the enemy’ and argued that officers should be able to call citizens ‘bitch’ and ‘n***a.’” 203 Negotiations on the collective bargaining agreement between SPOG and the city began in 2015. 204 These negotiations had to be completed before reforms under the consent decree could continue because some of the measures to improve police accountability potentially conflicted with the current contract. During the negotiations, SPOG President Smith was supportive of adopting some accountability measures that would lead to more transparency. For instance, he supported changes to the collective bargaining agreement that would have opened disciplinary hearings to certain outsiders, including a citizen observer appointed by the mayor and members of the Community Police Commission (CPC). 205 The CPC is a group created by the DOJ consent decree 206 made up primarily of community groups, including the ACLU and the NAACP, that had asked the DOJ to investigate the SPD.207 The CPC also has a guaranteed spot for a representative from SPOG and from the Seattle Police Management Association. 208 http://www.seattletimes.com/seattle-news/crime/seattle-police-guild-president-says-hequit-before-his-board-tried-to-fire-him/ 202 Ansel Herz, Seattle Police Union President to Cops: Get with the Times or Get Out of This City, Feb. 18, 2015, available at http://www.thestranger.com/blogs/slog/2015/02/18/21739167/seattle-police-unionpresident-to-cops-get-with-the-times-or-get-out-of-this-city 203 Id. See also Dominic Holden, Reform in Reverse, supra note __. 204 Ansel Herz, Amid Contract Negotiations, Seattle Police Union Claims It’s Under Attach by Black Lives Matter Activists, Dec. 3, 2015, available at http://www.thestranger.com/blogs/slog/2015/12/03/23230986/amid-contract-negotiationsseattle-police-union-claims-its-under-attack-by-black-lives-matter-activists 205 Ansel Herz, Inside the City’s Negotiations with the Police Union, Jun. 22, 2016, available at http://www.thestranger.com/news/2016/06/22/24243759/inside-the-citysnegotiations-with-the-police-union/ See also Miletich, Quit Before, supra note __ 206 The purpose of the group is to review the semiannual reports completed by the court appointed monitor, “hold public meetings, make recommendations to the city, and engage the community in police reforms. It also will review recommended changes to the department’s civilian-run Office of Professional Accountability, among other tasks.” Steve Miletich & Mike Carter, SPD Faces New Oversight, Scrutiny of Use of Force, The Seattle Times, Jul. 28, 2012, available at http://www.seattletimes.com/seattle-news/spd-faces-newoversight-scrutiny-of-use-of-force/ More information about the Community Police http://www.seattle.gov/community-policeCommission is available here: commission/about-us. 207 David Kroman, Reformers Aren’t Celebrating Police Union Leader’s Resignation, Crosscut, Jul. 14, 2016, available at http://crosscut.com/2016/07/ron-smith-seattle-policecpc/ 208 Id. 45 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX Under Smith’s leadership, SPOG did not file any grievances or do anything else to block any of the reform efforts. 209 One of the co-chairs of the CPC, Lisa Daugaard, noted that during the reform process, “things could have gone terribly with SPOG, but haven’t.” 210 She continued, “To the surprise of many, including me,…SPOG really has not impeded the reform process. There were many points along the way when many police unions might have filed grievances or unfair labor practice complaints about the changes that have been implemented without bargaining. They’ve chosen not to do that.” She concluded, “It’s not as simple as the labor union being the problem, tempting as that idea is, and true as it may have been in the past.”211 This observation is particularly surprising coming from Lisa Daugaard, who is not only a co-chair of the CPC, but also the Director of the Public Defender Association. And when, in 2014, rank and file officers from the North Precinct attempted to derail the new use of force policy adopted by the police department by filing a lawsuit, SPOG President Smith publically voiced his disapproval and the union did not join it.212 The relationship between the CPC and the police union has been described as “among the healthiest between any two parties in the [reform] process.” 213 Smith notes that the CPC treats the SPOG representative with respect and stated that while SPOG and the CPC don’t agree on everything, at least they “can talk to each other.” And, he further shared that he has “a really good relationship with [CPC co-chair] Lisa [Daugaard].” 214 The relationship is such that when the federal district court judge in charge of overseeing the consent decree suggested that “any new appeal process for police discipline cases created through ongoing collective bargaining negotiations must get [his] approval, the CPC filed an amicus brief supporting SPOG’s resistance to this suggestion. 215 Ironically, observers note that most of the tension has been between the CPC and other parties to the consent decree, namely the Mayor’s Office and the independent monitor team. 216 209 Conversation with Lisa D, Co-Chair of the CPC and Director of the Public Defenders Association. 210 David Kroman, Reformers Aren’t Celebrating Police Union Leader’s Resignation, Crosscut, Jul. 14, 2016, available at http://crosscut.com/2016/07/ron-smith-seattle-policecpc/ 211 Id. http://crosscut.com/2016/07/ron-smith-seattle-police-cpc/ 212 available at http://www.seattletimes.com/seattle-news/spd-officers-say-citylsquoplaying-politicsrsquo-with-their-lives/ 213 Kroman, Reformers, supra note __ 214 http://www.seattletimes.com/seattle-news/mellowed-leader-at-helm-of-spd-unionreflects-on-first-year/ 215 Kroman, Reformers, supra note __ 216 David Kroman, Police Unions, Citizen Group Forge Unlikely Partnership, Feb. 9, 2016, Crosscut, available at http://crosscut.com/2016/02/police-citizen-group-forgeunlikely-partnership/ 2016] POLICE UNIONS 46 Unfortunately, the rosy situation in Seattle may have come to an end. In early June 2016, SPOG president Ron Smith resigned after a scandal involving a controversial Facebook post in which he blamed the Dallas police officer shootings on what he termed the “minority movement.” 217 He denies that he was referring to the Black Lives Matter movement, claiming instead that he was referring to “the small segment of society which has the propensity for violence toward law enforcement.” 218 However, he resigned because all of the negative publicity was focusing attention away from the reforms efforts being made in the city. 219 In a later interview, however, he disclosed that he also resigned because the Executive Board of the union was going to attempt to force him out because of his acceptance of police accountability measures in the proposed union contract and for being too conciliatory to outside reformers and the Police Chief. 220 He had been described as a “bootlicker” because of his relationship with the Chief, 221 despite the fact that his collaboration with Chief O’Toole was crucial to his ability to negotiate improvements to officer working conditions. 222 While he expected that he could win the fight and stay in office because of support he had amongst some members of the Executive Board and the rank and file, he did not want the controversy over his Facebook post to distract from the on-going reform process. After he resigned, officers voted 823-156 to reject the contract. One of the reasons was the inclusion of civilian review in the proposed agreement. 223 217 Miletich, Quit Before, supra note __. In the December edition of the newsletter, Smith accused Barack Obama, Eric Holder, and Reverend Al Sharpton of carrying out a "divisive political agenda" in response to Michael Brown's death in Ferguson, as if the three prominent black men hatched a plot together to inflame race relations in a smoky back room somewhere.” http://www.thestranger.com/blogs/slog/2015/09/03/22808730/seattle-policeunion-says-contract-violation-prevents-spd-from-firing-officer-cynthia-whitlatch. 218 Ansel Herz, Seattle Police Union, supra note ___, available at http://www.thestranger.com/slog/2016/07/12/24337587/seattle-police-guild-presidentresigns 219 Id. 220 Miletich, Quit Before, supra n. __ 221 http://www.seattletimes.com/seattle-news/mellowed-leader-at-helm-of-spd-unionreflects-on-first-year/ 222 http://www.seattletimes.com/seattle-news/mellowed-leader-at-helm-of-spd-unionreflects-on-first-year/ He praised the Chief for being the first in recent history to work closely with the union. Under past chiefs, he stated, the union had to file grievances and unfair labor practices claims. Id. 223 Seattle Police Union Overwhelmingly Rejects Contract Offer, Jul. 21, 2016, Q13 Fox, available at http://q13fox.com/2016/07/21/seattle-police-officers-union-spogoverwhelmingly-rejects-contract-offer/ (“An email from the Seattle Police Guild (SPOG) said officers voted 823-156 to reject the proposal. A source told Q13 News that among the sticking points, two loomed large. The first was that officers oppose involuntary transfers for non-disciplinary reasons. The second was that officers don’t want civilian investigators in 47 B. THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX Drawing Lessons from Experiences One of the most important lessons from the examples is that while it might be difficult to convince unions to move away from their core mission to protect their membership from discipline, their defense of officers does not necessarily signal a lack of willingness to engage in other reform efforts. In fact, although reformers often view a union’s defense of officers as a hindrance, sometimes this defense can facilitate reforms by exposing institutional and systemic problems. For instance, as discussed in Part I, broken windows policing, the War on Drugs, and Compstat have together created intense pressures on rank and file officers to increase summonses, arrests, and stops and frisks. When officers complain or fail to meet their numbers, they might be given negative performance evaluations, affecting their ability to get promoted. This occurred in 2012 when some NYPD officers believed that their negative performance evaluations were the result of their complaints about their precinct’s quota system. 224 Pat Lynch, the President of the NYPD’s police union, the Patrolmen’s Benevolent Association (PBA), brought attention to these problems when he told newspaper reporters that these quotas were “a department-wide problem.” 225 A New York Times Magazine article on the persistence of arrest quotas reported that officers who shared their belief that the emphasis on numbers resulted in unnecessary arrests feared retribution from the brass. One officer said that the rank and file were “utterly demoralized and critical of the department. But they don’t have a voice… If they speak out, they get crushed.” 226 In 2005, the PBA challenged the “the department’s obsession with numbers” in a case involving an officer employed by the 75th precinct who received a negative evaluation allegedly based on his failure to meet the unofficial quota. 227 Years later, on May 7, 2012, the PBA took out a newspaper ad attacking the quotas which read, “Don’t blame the cop. Blame NYPD management for pressure to write summonses and the pressure to convict motorists.” The ad claimed the department was using its personnel the Office of Professional Accountability, preferring instead that complaints be handled by sworn officers.”) 224 GRAHAM A. RAYMAN, THE NYPD TAPES: A SHOCKING STORY OF COPS, COVER-UPS, AND COURAGE 233 (2013). 225 Id. 226 Saki Knafo, The Education of Edwin Raymond, NY TIMES MAGAZINE (Feb. 21, 2016), 50, 53. Interestingly, however, the article never mentioned the NYPD police union as a source of protection for officers seeking to challenge harassment of minority communities; officers instead turned to a civil rights suit against the NYPD. Id. at 75. 227 NYPD Tapes, at 43. 2016] POLICE UNIONS 48 powers to punish officers who didn’t write enough tickets. 228 Similarly, in New Jersey, the union opposed orders from police management to meet quotas, which union president Stewart claims created pressure on officers “to conduct baseless stops and strained relations with community members.” 229 Additionally, a union’s defense of officers can also facilitate structural reforms. For instance, NYPD officers who spoke out against the department’s controversial stop and frisk practices did so anonymously because they feared retaliation and punishment. 230 One officer shared that “punishments for falling short of quotas ranged from losing a longtime partner, low evaluation scores, retraining and denial of days off or overtime requests.” 231 Other officers shared similar stories. 232 Although it is unclear whether the union played any role in protecting these officers’ right to speak out against prevailing management practices, doing so would certainly fall within the union’s function. Another lesson from the examples is the importance of giving voice to rank and file officers. However, much of the policing literature observes that most reform efforts take a top-down approach. Police chiefs, politicians, and reformers often complain that the union and the collective bargaining agreement are obstacles to reform, and many police reformers have long accepted the idea that reform can only be accomplished through a top-down process. 233 228 Id. at 234. Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, Jun. 21, 2016, available at http://inthesetimes.com/features/police-killings-unioncontracts.html. 230 Alvin Melathe, Meet the 17 Year Old Who Blew the Lid Off Racial Profiling with His iPod, Nov. 11, 2013, available at http://www.upworthy.com/meet-the-17-year-old-whoblew-the-lid-off-racial-profiling-with-his-ipod 231 Ryan Devereaux, We were Handcuffing Kids for No Reason: Stop-and-Frisk Goes on Trial, The Nation, Mar. 28, 2013, available at https://www.thenation.com/article/wewere-handcuffing-kids-no-reason-stop-and-frisk-goes-trial/ 232 Id. (“Testimony from another Bronx police officer, Pedro Serrano…testified that failing to meet the precinct’s quotas translated in low evaluation marks. From 2010 to 2011, his scores dropped in every evaluation category. In 2012, he recorded more arrests and summonses, he testified, but his evaluations stayed the same because he performed only two stop-and-frisks for the entire year.”) 233 Samuel Walker, The Neglect of Police Unions, in Police Reform from the Bottom Up 88; Wesley Skogan, Why Reforms Fail, in Police Reform from the Bottom Up: Officers and their Unions as Agents of Change 149 (Monique Marks & David Sklansky, eds. 2012)(describing union resistance to community policing efforts in Chicago); Wesley Skogan, Community Policing: Common Impediments to Success, in Community Policing: The Past, Present, and Future 164 (Lorie Fridell, ed. 2005)(noting that in “a West Coast city, the union protested strongly against the community policing program (giving it the familiar ‘social work’ label) and threatened to keep officers from appearing at training at all); See also Sklansky, Democracy, at 156 (“The dominant mind-set of police departments, police 229 49 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX The wariness of some reformers about the willingness of police unions to embrace reform can be traced to the political activism of unions during the late 1960s, 234 when unions opposed citizen review boards and reform oriented chiefs, 235 in addition to pursuing improvements in wages, benefits and seniority. 236 Police activism during this time often took the form of “rabid, knee-jerk opposition to civilian oversight, active participation in far right-wing organizations, vigilante attacks on black activists, [and] organized brutality against political protesters.” 237 Today, statements and actions by police unions and rank and file officers continue to lend support to the view that police rank-and-file share a monolithic occupational mindset and subculture of paranoia, insularity, and intolerance. 238 reformers, appellate judges, and criminal justice scholars – the dominant mind-set, in short of nearly everyone who thinks about policing and its problems – is, and has long been, that policing is a place for top-down management. Good police officers are police officers who follow rules. Police unions, and police organizing more generally, are obstacles, not opportunities.”). 234 “Skolnick … saw police activism as a threat to the rule of law: like judges or soldiers, police officers should be apolitical.” Sklansky, at 55, citing JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 286-88 (1966). 235 Sklansky, 55, citing STEPHEN C. HALPERN, POLICE-ASSOCIATION AND DEPARTMENT LEADERS: THE POLITICS OF CO-OPTATION 11-88 (1974); SKOLNICK, JUSTICE WITHOUT TRIAL at 278-81; SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 27-29 (2002). For instance, “the 1971 vote of no confidence in Chief Charles Gain of the Oakland Police Department by the local Police Officers’ Association. Gain was a committed reformer who won the respect not only of Skolnick but also other scholars who used the Oakland department for sociological research on the police.” Sklansky, at 55 n. 144. 236 Sklansky, 55. 237 David A. Sklansky, Not Your Father’s Police Department, 96 J Crim. L. & Criminology 1209, 1241 (2006)(arguing that this view is a caricature). See also See, e.g., Wesley Skogan, Why Reforms Fail, in Police Reform from the Bottom Up: Officers and their Unions as Agents of Change 149 (Monique Marks & David Sklansky, eds. 2012)(describing union resistance to community policing efforts in Chicago); Samuel Walker, The Neglect of Police Unions, in Police Reform from the Bottom Up 88 (“Anecdotally, police chiefs routinely complain that they are unable to undertake certain innovations because of the police union and the collective bargaining agreement.”); Paoline, Taking Stock, at 200 (noting that “many have asserted that the major barrier to reforming the police is the [police] culture.”). 238 David Alan Sklansky, Seeing Blue: Police Reform, Occupational Culture, and Cognitive Burn-In, in Police Occupational Culture: New Debates and Directions, 8 Sociology of Crime, Law and Deviance, at 19, 21 (Megan O’Neill, Monique Marks and Anne-Marie Singh Eds. 2007)(hereinafter Sklansky, Seeing Blue). Peter K. Manning, A Dialectic of Organisational and Occupational Culture, in POLICE OCCUPATIONAL CULTURE: NEW DEBATES AND DIRECTIONS 59 (Megan O’Neill, Monique Marks, Anne-Marie Singh, Eds. 2007) (2007)(hereinafter Dialectic)(noting that discussions of the rank and file “have been conflated into a caricature.”); Eugene A. Paoline, Taking Stock: Toward a Richer Understanding of Police Culture, 31 J. Crim. J. 199, 200 (2003)(noting that “Most connotations of police culture are negative.”); See also Report of the City of New York 2016] POLICE UNIONS 50 It is also undoubtedly true that the crime-fighting ideology of professionalism in policing and the law-and-order rhetoric of the political right had a long-term impact on police officers and their unions, even though most police union leaders now are in the middle of the political spectrum.239 Additionally, some resistance to reforms can be explained by rank and file opposition to policies that require them to retreat from their traditional, aggressive, crime-control orientation. This should not be surprising, however, since many likely joined the police department relying upon the type of policing that is currently in vogue and taught in most police academies and in their departments. Thus, changes to policing tactics might seem like a bait and switch, especially when measures of officer success have not kept pace with changes in policing tactics such as community policing. However, attributing resistance solely to rank and file intransigence ignores how the typical top-down approach to reforms can also predictably lead to resistance. Resistance often stems from people’s “opposition to, or frustration with, enactments of power.” 240 Research from the study of power reveals that certain exercises of authority can breed deep resentment among lower level employees, resulting in resistance to employer mandated policies and procedures. One form of power that predictably produces frustration is failing to provide employees with a voice in decisionmaking. 241 Voice is important because it expresses to workers that their views are significant enough to be considered. 242 Failing to give employees’ voice, or providing them with illusory voice, 243 not only provides them with signs of their low status, but also deprives them of interactions with power holders that can favorably influence their attitudes. 244 Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department (1994), reprinted in 6 New York City Policy Corruption Investigation Commissions, 1894 – 1994 (Gabriel J. Chin ed., 1997)(discussing cultures of corruption within the organization); Report of the Independent Commission on the Los Angeles Police Department (1991)(same). 239 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 204 in Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996). 240 Thomas B. Lawrence & Sandra L. Robinson, Ain’t Misbehavin: Workplace Deviance as Organizational Resistance, 33 J. Management 378, 380 (2007); Mitch Rose, The Seduction of Resistance: Power, Politics, and a Performative Style of Systems, 20 Environment & Planning D: Society and Space 383, 387 (2002)(noting that “practices of ‘resistance cannot be separated from practices of domination: they are always entangled in some configuration'’'). 241 Lawful or Fair, at 9. 242 Lind, Kafner & Early, at 957. 243 Id. (noting that “people react quite negatively to ostensibly high voice procedures when repeated unfavorable outcomes or communications from others focus attention on possible biases that might subvert the impact of their voice.”)(citations omitted). 244 Tyler, 176. 51 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX From the perspective of thinking about the possibility of police union involvement in police reform, studies of the successes and failures of community policing models have found that proper training of officers and a participatory management style are correlated with more positive officer attitudes about community policing. 245 Street officers in Chicago who felt well trained in community policing methods were more positive about their jobs than officers who did not feel well trained. They were also more optimistic about the impact of community policing in reducing crime if they felt a part of the decision-making process. Agencies that imposed community policing without officer involvement and maintained a top-down, paramilitary decision-making style tended to meet with strong officer resistance; officers who were involved in designing the program were more positive about it. 246 Moreover, it is likely that the insights and creativity of rank and file officers can revolutionize policing. Line personnel are a powerful and important resource to improve policing or improve the relationship between police and citizens. 247 Another example from Seattle demonstrates this point. In October of 2011, Seattle unveiled an ambitious and unique four-year pilot program to address the major problem of open-air drug markets in the downtown Seattle corridor. The Law Enforcement Assisted Diversion program (LEAD) is a pre-booking program that gives police officers the discretion to divert individuals engaged in low-level drug and prostitution crimes to community-based services instead of jail and prosecution. 248 The program was the first of its kind in the country and resulted from a successful collaboration between unlikely partners including the public defender’s office, the prosecutor’s office, community groups, non-profit organizations such as the ACLU, and top command from the Seattle Police Department.249 Like many other reform efforts that seek to change street level 245 Id. at 403. Id. at 403, 421-22. 247 George L. Kelling & Robert B. Kliesmet, Police Unions, Police Culture, and Police Abuse of Force 191, 209-10 in Police Violence: Understanding and Controlling Police Abuse of Force (Eds. William A. Beller & Hans Toch, 1996), citing DAVID H. BAYLEY & JAMES GAROFALO, PATROL OFFICER EFFECTIVENESS IN MANAGING CONFLICT DURING POLICECITIZEN ENCOUNTERS, IN REPORT TO THE NEW YORK STATE COMMISSION ON CRIMINAL JUSTICE AND THE USE OF FORCE (Vol. III), pp. B1-88, May 1987 248 http://leadkingcounty.org. LEAD relies “upon the experience of patrol officers to identify the right candidates. The arrested person will then be given a choice – do you want to go to jail or do you want to go to the LEAD program?” Press Conference at 4:28. Dan Satterberg, a King County prosecutor stated that officers will continue to patrol open air drug markets, “but they will now have a compassionate option for people who have lost their way.” Press Conference at 6:44. 249 See http://leadwa.squarespace.com/storage/LFA%20Evaluation%20Narrative%20%20February%202012.pdf. 246 2016] POLICE UNIONS 52 policing practices, LEAD policy-makers followed a top-down approach. They sought input from high-level police officials, social scientists, advocates, and community leaders. Although patrol officers from one precinct of the Seattle Police Department were given significant responsibility for making the program work, 250 their input was never sought. Rather, the reformers used the ubiquitous top-down approach and worked only with top command in developing the policy. 251 This approach made sense since top command in the Seattle Police Department is known for being reform oriented. 252 The new program was poised to be a huge success. Command level officers within the police department fully supported the program. As a result, they instituted new rules and policies for patrol officers to follow. There was just one problem. Despite the absence of overt resistance to the program from the rank and file officers responsible for its implementation, there was significant opposition behind the scenes. In fact, not only did patrol officers resent the program, but middle managers within the department were also suspicious. The unique and groundbreaking cooperation between top command and outside agencies and experts may have aggravated rank and file resentments. As two policing scholars note, rank and file officers do “not appreciate being told what to do by outsiders, especially outsiders whom they perceive as unacquainted, or at least out of touch, with the daily demands of their job.” 253 Consequently, while these officers did not publicly voice their disapproval of LEAD, they quietly and covertly failed to implement it. This hidden resistance would not have been discovered but for the fact that the program’s evaluation process included focus groups with middle management. It is unsurprising that the rank and file were suspicious of the policy. Although top command was heavily involved in working out its final details, this was unlikely to alleviate rank and file concerns. Furthermore, failing to give them any voice likely fueled existing resentments because it 250 http://www.seattletimes.com/seattle-news/crime/lead-program-for-low-level-drugcriminals-sees-success/ 251 Hans Toch, Police Officers as Change Agents, at 29. Bevir & Krupicka, Police Reform, at 172 (“The top-down view of the policy process held by many reformers means that local police departments and rank and file officers are often only cursorily consulted about reform programs.”); Walker, Neglect of Police Unions, at 96 (noting that “[o]ne aspect of the neglect of police unions has been the failure of accountability advocates to involve union leaders in discussions of reform measures.”) 252 Former Seattle police chief Norm Stamper was a very progressive and thoughtful leader, and currently serves as the head of LEAD. The current police chief, John Diaz, is a protégé of Stamper and is similarly reform oriented. 253 Bevir & Krupicka, Police Reform, at 172. See also Skogan, Why Reforms Fail, at 147 (“Police are skeptical about programs invented by civilians.”). 53 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX communicated to them just how unimportant their views were and just how low their status was within the department. To make matters worse, they were one of the only groups that would be affected by the policy that was excluded from policy-making as members of the community and other organizations throughout the city were consulted. Finally, because the rank and file had no contact with the civilian reformers, they had no opportunity to develop a different opinion about their motives. 254 Rank and file resistance to LEAD was not open and obvious. There was no public position taken by the union against the policy and the officers did not publicly voice their disapproval. Rather, they engaged in what political scientist James Scott refers to as “everyday resistance,” acts of resistance that are meant to frustrate or defeat formal dictates in ways that are designed not to be discernible. 255 Their resistance was only discovered because LEADs evaluation process called for the creation of focus groups made up of sergeants from the department. 256 During discussions, the sergeants not only disclosed their own reservations about the policy, but they also shared the resentments of the rank and file. These resentments and mistrust had led the rank and file to quietly and covertly undermine the policy on the street. In response, the group began to work closely with the sergeants and some rank and file officers to determine what the problems were and how to best address them. This process entailed giving these groups voice and actually making changes to LEAD in response to their concerns. While the officers were initially skeptical about whether the group was actually interested in obtaining their input, they slowly came around. Today, not only has the program improved, 257 but the relationships of trust that were formed between members of the police department and reformers has fostered additional gains in other areas. Importantly, it is not that all rank and file officers bought into the program, but rather, that while 254 Additionally, they had no opportunity to voice their valid concerns such as whether their new responsibilities would simply be added on to their existing duties, whether they would be given credit for referring people to treatment, and whether these new responsibilities would require more paperwork without any decrease in their existing duties. 255 Scott, Domination, at 144. 256 This group includes “representatives from the Seattle Office of the Mayor; King County Executive Office; Seattle City Council; King County Council; Seattle City Attorney's Office; King County Prosecuting Attorney's Office; Seattle Police Department; King County Sheriff's Office; Washington State Department of Corrections; Belltown LEAD Community Advisory Board; Skyway LEAD Community Advisory Board; The Defender Association; and the ACLU of Washington.” ACLU, Innovative LEAD Project Sends Drug Offenders to Services Instead of Jail (Oct. 13, 2011), available at http://www.acluwa.org/news/innovative-lead-project-sends-drug-offenders-services-instead-jail. 257 http://www.seattletimes.com/seattle-news/crime/lead-program-for-low-level-drugcriminals-sees-success/ (discussing study which shows success of the program) 2016] POLICE UNIONS 54 some still questioned the substance of the policy, they also worked towards improving its efficacy. Giving genuine voice to officers and treating them with respect affected their attitudes and behaviors towards LEAD. This occurred despite the fact that many continue to disagree with the substance of the policy. Being included in the process rather than being marginalized and having quality interpersonal interactions with reformers helped mitigate feelings of distrust and skepticism from the lower ranks. According to one of the reformers who founded LEAD, the program is having an important and positive impact in the community in large part because of rank and file and sergeant level innovation. In sum, the Seattle experience provides some evidence that rank and file officers can play a significant role in reform-oriented policy-making. Although this involvement did not involve the union per se, the union also did not file grievances and other collective bargaining challenges that they could have brought. Furthermore, the relationships of trust that developed between some members of the rank and file and the outside reformers has facilitated other reform efforts. Furthermore, with this type of close contact, reformers can gain a better understanding of the major concerns of the rank and file and the union and attempt to address them. Voice can also facilitate more positive relationships between the rank and file and police management. The more contact management has with the rank and file, the less likely union leadership can successfully paint a falsely negative picture of management in order to ensure that rank and file officers continue to join the union, increasing the power, influence and budget of union leadership. Policy-makers cannot afford to disregard the dynamics of power within police departments for at least two reasons. First, the way that power is exercised within departments can influence whether rank and file officers view reforms as legitimate and entitled to deference, or whether they attempt to undermine them through acts of resistance. Policy-makers should recognize that when they work solely with the top command levels of police departments, they might unintentionally exacerbate rank and file frustrations with existing power arrangements, leading to resistance to any new policies that might be enacted. Thus, although reformers may believe they have achieved success because police management has enacted new policies and procedures in response to their concerns, their failure to engage the rank and file may ultimately doom their efforts. Second, the dynamics of power also reveal that resistance may occur without the knowledge of police management or outside policy-makers. Hidden acts of resistance in the face of power are ubiquitous since open opposition by subordinate groups often has adverse consequences, especially in the workplace. For instance, an employee who candidly expresses her 55 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX displeasure and disagreement with rules and policies directly to her supervisor may significantly reduce her opportunities for promotion or other discretionary employment benefits. Because street officers operate primarily out of sight of management, they have numerous opportunities to engage in covert resistance to reform-oriented policies. When resistance is subtle rather than overt, management and reformers may be unaware that the new policy is not being implemented. What the analysis thus far has shown is that police unions have strong incentives to resist policies imposed without their involvement in policy development but that, when they are involved in policy development and when the reforms are not simply focused on harsher and swifter punishment of officers, police unions have supported them. The question to which we now turn is whether it is feasible to use the levers of labor law to increase the incentives for departments and unions to collaborate in developing and implementing reforms. IV. CHANGING POLICE UNIONS One would search in vain for any account of the problems with policing or the avenues for reform that doesn’t place substantial emphasis on changing rank and file police culture and the supervision and training of the rank and file. As the DOJ concluded in its August 2016 Report on the Baltimore Police Department, “[t]he constitutional violations described in our findings result in part from critical deficiencies in the BPD’s systems to train, equip, supervise, and hold officers accountable,” because, among other things, the BPD: does not “collect and analyze reliable data” to allow early interventions to deal with problematic officer conduct; does not consistently accept, investigate, or respond to complaints of even serious misconduct; and “many officers are reluctant to report misconduct for fear that doing so is fruitless and may provoke retaliation.” 258 The set of best practices promulgated by the International Association of Chiefs of Police, along with empirical research on police, agree that rank and file officers should be involved in the development of policies because otherwise they won’t comply, and in-depth analyses of problematic police departments often find that the rank and file are not involved in policymaking and resist the implementation of reforms. 259 Although, as noted above, scholars and 258 DOJ REPORT, 128. W. Dwayne Orrick, Best Practices Guide: Developing a Police-Department PolicyProcedure Manual, International Association of Chiefs of Police, http://www.theiacp.org/portals/O/pdfs/BP-PolicyProcedures.pdf; Nicole E. Haas, et al., Explaining Officer Compliance: The Importance of Procedural Justice and Trust Inside a Police Organization, 15 CRIMINOLOGY & CRIM. JUSTICE 4, 16 (2015); see also DOJ Report at 129-30 (finding that BPD does not seek officer input into policy development with the 259 2016] POLICE UNIONS 56 commentators urge greater public involvement and transparency, in our judgment more will be required than just public involvement and transparency to get police culture to change. The question we address in this Part is whether changing certain institutional structures of employee representation, including police unions, will promote rank and file support for measures that would improve community policing, transparency, and accountability. We propose the use of labor law to create leverage within police departments for officers and supervisors who support reform. In particular, we suggest that organizations of officers other than the majority union be empowered to meet and confer with department leaders over the formulation and implementation of policies relating to community policing, data collection and analysis, and transparency. We first describe why we advocate some incursions on the labor law principle of exclusive representation. We then describe our legal proposal in more detail. We end by addressing the likely objections. A. Why Empower New Labor Organizations in Police Departments? The literature on policing, the investigations of particular police departments, and the news coverage of policing since Ferguson (and before) suggest that within many, or perhaps most or all police departments, there are officers throughout the hierarchy who are receptive to reform and willing (or at least possibly willing) to report and to try to prevent unconstitutional conduct. 260 But most of the accounts of those supporters of reform either make no mention of the police union or suggest that the union was at best indifferent to the problems and at worst hostile to reform efforts and whistleblowers. For example, the NYPD officer profiled in the February 2016 New York Times Magazine for his efforts to challenge the persistence of racial inequities in police-citizen encounters described being retaliated against and seeking support not from the police union but from the association of Black NYPD officers and joining a class action suit. 261 Officer Schoolcraft with the NYPD was retaliated against by management when he exposed the unofficial quota policy, and the PBA did nothing to protect him. 262 In the LAPD, the association of Black officers supports Black Lives Matter while the union result that officers find policies to be “confusing and opaque” and “lack confidence in the policy guidance BPD provides”). 260 See supra text accompanying notes __. 261 Knafo, The Education of Edwin Raymond, supra at 49. 262 http://www.villagevoice.com/news/nypd-tapes-4-the-whistleblower-adrianschoolcraft-6429143; http://www.huffingtonpost.com/news/adrian-schoolcraft/. 57 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX does not. 263 In Baltimore, the DOJ Report states that investigators met with leadership of the Baltimore City Lodge No. 3, which represents all sworn BPD officers, but that is the only mention of the union in the entire 163-page report. 264 If the reformers at the top of a police department had institutionalized connections to reform supporters at the bottom of the hierarchy, things might change. In theory, unions could facilitate accountability. By protecting cops from unfair decisions, unions could enable cops to exercise discretion and judgment, and assure fairness in punishing mistakes, and enable whistleblowing. Unions might prevent scapegoating a single hapless officer when blame for mistreatment of citizens belongs on another officer, or a group of officers, or management insisting on a dangerous policy as in the case of NYPD Officer Peter Liang who shot an unarmed black youth in a stairwell, and NYPD officers had complained about the practice of “training” rookie officers by placing them in extremely dangerous situations. 265 Yet the examples above suggest that unions do not always play this role, and the question is why. Changing demographics of large urban police forces may provide a path forward to create such institutionalized connections among reformers throughout the hierarchy. As police departments have become more diverse, identity-based groups representing officers have gained members and influence. Recent work shows that a “diverse police force mitigates group threat and thereby reduces the number of officer-involved killings.” 266 The diversity of the police force is thought to reduce excessive force through four processes: it increases legitimacy of the police among minority communities, it increases the number of officers who may be more compassionate toward minority communities, it increases opportunities for contact between police and citizens, and perhaps most important, it weakens solidarity within the police community when confronted with threats. 267 Thus, although data remain unclear on whether the representation of African-Americans in the police directly influences the number of officer-involved killings of AfricanAmericans, it is associated with “various factors associated with group threat 263 Robin Abcarian, She’s the Mom of Four Black Men, a Former L.A. Cop and a Major Skeptic of Justifiable Police Shootings, Jul. 18, 2016, LA TIMES, available at http://www.latimes.com/local/abcarian/la-me-abcarian-cheryl-dorsey-20160718-snapstory.html 264 DOJ REPORT, supra at 3. 265 See supra note 178. 266 Joscha Legewie & Jeffrey Fagan, Group Threat, Police Officer Diversity and the Deadly Use of Force, Columbia Law School Working Paper 14-512, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778692, at 30. 267 Legewie & Fagan, 9; Smith 2003, Walker, Spohn & DeLone at 180. 2016] POLICE UNIONS 58 and thereby eases the tensions between the police and African-American communities.” 268 A diverse workforce is, typically, less likely to have a monolithic attitude toward issues, but it is necessary to have a mechanism to translate the diversity of perspectives into policymaking and implementation. That institutional mechanism could be a diversity of labor organizations, but only if there aren’t so many as to produce a cacophony of voices and chaos in negotiations. There would need to be some mechanism to cause organizations to merge or form coalitions in order to match the leverage a long-established police union can exert. That process may already be happening, as some mainstream police unions are staving off the threat to their dominance as the police labor representative by building their own bridges to civilian groups, both inside and outside the labor movement. 269 A second and related reason we propose the institutionalization of alternative labor organizations in police departments is to combat the proven tendency of police unions toward oligarchy. The solidarity that is essential for any union to function is especially powerful in a workforce in which officers can endanger each other’s safety by refusing to respond to a call for back up. The duty of fair representation, along with union constitutions and bylaws requiring regular democratic elections of leadership, are supposed to temper the tendency toward oligarchy and to make the union leadership responsive to the disparate views of the members. 270 Yet, as labor scholars have long observed, oligarchy remains a significant issue for many unions, and police unions are no exception. 271 But the problem is not simply oligarchy, in the sense of control of the union by a few, but also that the union leadership in many cities seems unresponsive to the segment of the rank and file who favor greater engagement with minority communities especially. For example, in interviews we have conducted and in the literature, many examples have been given of circumstances when the union leadership’s embrace of reform elicited a threat from a segment of the membership to vote the reformers out of union office, and this happened in Seattle. As a Boston 268 Legewie & Fagan, 32-33. Sklansky; Sun & Payne 2004; Walker, Spohn & DeLone 2012 at 180. 270 See, e.g., Martin H. Malin, The Supreme Court and the Duty of Fair Representation, 27 HARV. C.R.-C.L. L. REV. 127 (1992). 271 The classic work on oligarchy in union governance is SEYMOUR MARTIN LIPSET, MARTIN A. TROW & JAMES S. COLEMAN, UNION DEMOCRACY: THE INTERNAL POLITICS OF THE INTERNATIONAL TYPOGRAPHICAL UNION (1956). A more recent discussion of the anomalous features of union governance is Cynthia Estlund, Are Unions a Constitutional Anomaly? 114 MICH. L. REV. 169 (2015). Other sources are collected and discussed in Catherine L. Fisk, Workplace Democracy and Democratic Worker Organizations: Notes on Worker Centers, 17 THEORETICAL INQUIRIES IN LAW 101, 106-107, n. 17, 113-16 (2016). 269 59 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX Police Department veteran said, “Union leaders who might seek a collaborative role with management in facilitating reform would not be reelected to office.” 272 Alternatively, progressive forces within police departments have struggled with more regressive union leadership. NYPD officers attempted to oust PBA President Lynch after his hostile comments following the killings of Eric Garner and others, but they were unsuccessful. 273 An enduring criticism of public employee bargaining is that it is both antidemocratic and promotes bad governance. 274 The argument is that public employees and governments agree to terms that are not in the public interest because taxpayers are not represented in bargaining and public employee unions are a special interest with disproportionate influence in the political process to get legislators and executive branch officials elected and to lobby for legislation (e.g., the construction of more prisons or harsher criminal sentences) that increase employment. Empirical support for and modeling attempting to prove this argument exist, but the evidence is mixed. 275 Early in the development of public sector unions, Clyde Summers, a thoughtful scholar of labor law and a proponent of the benefits of unionization, observed that government employee collective bargaining is a political policymaking process and that the bargaining process and the subjects over which public employees bargain should be regulated by law to produce a desirable political framework in which to make policy decisions. One example he used was police disciplinary procedures. He postulated that a police union “probably represents the consensus of” officers in negotiating to foreclose public review of discipline. He suggested that a public review board perhaps ought not be subject to bargaining, because there would not be a fair airing of all sides of the issue. A public review board, he said, is unlikely to be opposed by “those interested in more police protection,” or by “the chief of police and the police commissioners who sit on the employer’s side of the bargaining table,” and in bargaining between the union and the brass, no one 272 Henrick Karoliszyn, Solidarity in Blue, Prison Legal News, March 4. 2016, located at https://www.prisonlegalnews.org/news/2016/mar/4/solidarity-blue/ (quoting Tom Nolan, 27 year veteran of the Boston Police department and currently professor of criminology at Merrimack College) 273 http://www.huffingtonpost.com/2015/01/21/patrick-lynch-nyc-pba-bossarrogant_n_6515016.html 274 HARRY WELLINGTON & RALPH WINTER, JR., THE UNIONS AND THE CITIES (1971). Even the staunch defenders of public sector unionism acknowledge the potential for it to affect the democratic process. See, e.g., Clyde Summers, Public Sector Bargaining: A Different Animal, 5 U. PA. J. LAB. & EMP. L. 441 (2003). 275 See, e.g., Kenneth G. Dau-Schmidt & Mohammad Khan, Undermining or Promoting Democratic Government? An Economic and Empirical Analysis of the Two Views of Public Sector Collective Bargaining in American Law, 14 NEV. L.J. 414 (2014). 2016] POLICE UNIONS 60 represents the interests of “those who fear that policemen will act abusively or unlawfully and that their superiors will not take appropriate disciplinary action.” Thus, he concluded, collective bargaining “does not provide an appropriate political process for full discussion of the issue or for weighing and reconciling the competing issues.” 276 The labor law doctrinal response to the Summers’ argument would be to declare that citizen review boards are not a permissible subject of bargaining so that neither management nor the union could negotiate away the public’s right to review some police policies. Yet, for the reasons given above and in the literature on other forms of institutional reform, simply taking some issues off the negotiating table is not a solution to the problem of police misconduct. It is essential to marshal the support of the labor force to implement policy, and the more discretion, skill, and expertise is required for the work, the more important it is to ensure that police officers at the bottom of the organization are given an opportunity to voice their ideas and concerns. The questions of accountability of police officers to the public and police union leadership to the members exist even where there is no institutionalized collective bargaining, as in Virginia and the Carolinas. 277 In North Carolina, which prohibits governments from collectively bargaining with organizations representing public employees, the Fraternal Order of Police, which claims 6,000 members among city police departments statewide, decided to endorse the Republican candidate for governor because the Democratic candidate, who is currently the North Carolina Attorney General, brought criminal charges against a Charlotte-Mecklenburg police officer who shot an unarmed black man in 2013. 278 The absence of institutionalized negotiating relationships in North Carolina means that the decision about whom the FOP will endorse is perhaps one of the most important things that the FOP decides. There is no legal obstacle to police officers forming other groups to represent a different point of view, and collecting contributions from their members to spend on political activity. But the absence of such a tradition, and the absence of institutional support for such organizations in the states that do allow public employee bargaining 276 Clyde W. Summers, Public Employee Bargaining: A Political Perspective, 83 YALE L.J. 1156, 1196-97 (1974). 277 The most thoughtful analysis of the operation of public sector unions in states that do not recognize public sector bargaining is Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites in the Public Sector Labor Law Spectrum, 18 CORNELL J. L. & PUB. POL’Y 735 (2009) (comparing Virginia and Illinois). We have not found in the literature critiquing police unions and police union contracts a sustained effort to explain whether or why police misconduct is less pervasive than in comparable states with unionized police forces. 278 Michael Gordon & Jim Morrill, Lingering Anger Over Kerrick Case Boils Up in Governor’s Race, NEWS & OBSERVER Aug. 16, 2016, at __, available at http://www.newsobserver.com/news/politics-government/election/article96030727.html 61 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX gives the FOP the practical ability “speak for” all North Carolina police officers in the way news organizations cover the event. What if there were an alternative organization that could rally the members and engage in discussions with management over an alternative point of view (assuming such exists)? 279 B. A Form of Members-Only Bargaining One old criticism of unions that has gained recent support, especially among conservatives and libertarians, asserts that collective bargaining by a union chosen by the majority violates the rights of the minority who disagree with the union’s position. 280 This objection to unions has particular salience in the case of police unions, especially in departments where officers disagree about how to police minority communities and whether arrests for certain relatively minor offenses serve the public interest. While for the moment public employee unions chosen by the majority remain the exclusive representative of all employees in the bargaining unit, the recent litigation and legislative efforts to dramatically curtail bargaining rights of government workers have invited consideration of alternative models. 281 One model is members-only union representation with some kind of proportional representation rule. This type of system existed for some government employees prior to the development of modern public sector labor law. California, for example, had a proportional representation system for some public employees from 1961, when it enacted its first public sector labor law statute, to 1976, when it adopted new public sector labor statutes providing for exclusive representation. 282 The Winton Act, as the old statute was known, did not allow public employers to recognize an exclusive 279 In Ricci v. DeStefano, 557 U.S. 557 (2009), a reverse discrimination challenge to a New Haven’s decision to discard the results of tests that had a disparate impact on black firefighters’ chances for promotion, the fire fighters’ union opposed department’s decision to discard the test results. This is another example of how a union can hurt members of minority groups in ways other than through collective bargaining. 280 See SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION: FROM THE NEW DEAL TO THE NEW RIGHT (2014); Estlund, Constitutional Anomaly, supra note __. 281 See Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (Mem. 2016); Harris v. Quinn, 134 S. Ct. 2618 (2014). 282 The Winton Act was enacted in 1965 and covered only public school teachers. The Brown Act, which covered other government employees, operated slightly differently. The systems are explained in Darrell Johnson, Note, Collective Bargaining and the California Public Teacher, 21 STAN. L. REV. 340 (1969). They were replaced by four statewide public sector labor laws, including the Meyers-Milias-Brown Act, which established collective bargaining rights for county and municipal employees (including county sheriffs and city police). Cal. Gov’t. Code § 3500 et seq. See generally Joseph R. Grodin, The MeyersMilias-Brown Act in the Courts, 50 HASTINGS L.J. 717 (1999). 2016] POLICE UNIONS 62 bargaining representative chosen by the majority. 283 Instead, employee councils consisting of representatives from the gamut of employee organizations were authorized to meet with employers. These councils were ostensibly to “save time” for government agencies, allowing them to hear all opinions at once. The council included representatives from employees only in the form of organization representatives or even individuals. The Act permitted the majority employee organization to articulate the official position of the employees, but provided a forum for other minority organization representatives and individuals to express points of view. 284 The suggestions gleaned from these council meetings were handled by the employer agency (i.e., the school board, because the Winton Act applied to teachers). The employer had the legal right under the Winton Act to make the final decision on all matters. The Act recommended that employers incorporate agreed-upon items into “written resolutions, regulations, or policies,” but these directives were implemented in various ways across the state, and council procedures differed from one city, county, or school district to another. 285 This proportional representation system was replaced in California in 1976, and in other states by the early 70’s for a variety of good reasons. It was far from ideal. It was expensive and cumbersome. It did not provide an organized system for shared decision making between government employees and public administrators because decisionmaking authority was left in the hands of the government agency. It generated rather than resolved conflict among different groups of employees. 286 And, as applied to teachers, it was an obstacle to uniform policies across school districts. Majority rule through exclusive representation, in contrast, can be more efficient as a system of governance, which is why it is the rule in every democracy. But, sticking with political analogies, many parliamentary democracies have governance systems that involve multiple parties that form coalitions to create a majority, and that might be a pattern worth considering for police unions if the concern is that union leadership are systematically excluding voices within the rank and file. A variety of issues would need to be addressed, depending on how radical a change in the existing system of representation a state chose to adopt. If officers chose not to belong to the existing union, in the half of states 283 Grodin, supra note 282. Id. 285 Id. 286 As one of us has argued elsewhere. See Catherine Fisk, Challenge to ‘Fair Share’ Fees Unfair and Unworkable, (October 6, 2015), available at http://blogs.edweek.org/edweek/on_california/2015/10/challenge_to_fair_share_union_fees _unfair_and_unworkable.html 284 63 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX that require payment of agency fees to a recognized labor organization, would employees be obligated to pay an agency fee to the majority union or could they instead pay fees to their own? Would the majority union retain the duty of fair representation to all represented employees or only some duty to its members? 287 Would the same collective bargaining agreement apply to all officers or only to the members? For the moment, we propose only a very modest change. The same principles of dues and fees as exist under current law would apply, as would the duty of fair representation and all the labor law that turns on the duty of fair representation. All that we would change is to impose on the department the duty to meet and confer with a minority union provided it demonstrated a minimum level of support – say, membership of 20 percent or more of the officers in the department. The scope of that duty to meet and confer would extend, however, to any topic relating to conditions of police employment other than terms in the existing contract. Thus, the duty to confer would cover matters of policy that are not mandatory subjects of bargaining under existing law. But the conferring would also not lead to minority groups undercutting existing contract terms. The purpose of this limited duty to confer is to create an institutional mechanism for police officers to be involved in policymaking and problemsolving. 288 That is why the scope of the duty expands beyond the wages and working conditions as to which public sector labor law currently imposes a duty to bargain. But it is also intended not to weaken the economic and disciplinary protections for which police unions have bargained. In this respect our proposal resembles some that have been made for the reform of teaching. 289 Our proposal resembles proposals to create institutions of labormanagement cooperation that have been made many times for different 287 See, e.g., Catherine L. Fisk & Benjamin I. Sachs, Restoring Equity in Right to Work Law, 4 U.C. IRVINE L. REV. 857 (2014). 288 Our proposal might look a bit like what is happening in Missouri since 2007, when the Missouri Supreme Court declared public employees have a state constitutional right to bargain collectively even though the state lacks statutory regimes for union representation and bargaining. Independence-National Education Association v. Independence School District, 223 S.W.3d 131 (Miss. 2007); see generally MALIN, ET AL. PUBLIC SECTOR EMPLOYMENT, supra note __ at 391-421. 289 Madeline L. Sims, Note, The Business of Teaching: Can a New Contract Change the Culture? 48 COLUM. J.L. & SOC. PROBS. 605 (2015) (proposing reforms to teachers union negotiations, including an expansion of subjects of bargaining, as a part of school reform, and arguing that outright elimination of teachers unions or narrowing the subjects of bargaining will not improve education). 2016] POLICE UNIONS 64 industries, 290 also echoes suggestions made by labor law scholars including Martin Malin, Joseph Slater, and others going back to the 1980s, criticizing the scope of the duty to meet and confer in the public sector. 291 As Professor Malin pointed out, there is a lot of evidence that when workers, through their unions, are given a voice in areas where they have no right to bargain, the union’s role is transformed and better policies result. For example, with teachers, when school boards unilaterally impose performance standards, it is not a surprise that unions do what they can to protect their members from adverse actions based on failing to meet those standards. When school boards opt instead to work with the union to develop those standards and use peer review to implement them, the unions become the protectors of the standards rather than knee-jerk opponents. Union involvement in teacher peer-review leads to greater levels of attrition among poor performers than traditional methods of principal observation and discipline or dismissal for failure to meet the standards. 292 A similar phenomenon occurred in the 1990s, when President Clinton by Executive Order created partnership councils and thereby spurred the creation of a very successful partnership between the Customs Service (now the Bureau of Customs and Border Protection) and the National Treasury Employees Union that represented customs agents. 293 Data showed a substantial improvement in job performance, even by metrics such as increased drug and currency seizures. 294 Similar results were seen in Oakland, when the police department developed a peer review system for reviewing officer uses of force. As indicated above, uses of force within the department were reduced during the pendency of the project. Our proposal also echoes suggestions labor law scholars have made to incorporate identity-based groups into unionized workplaces as a way of ensuring that the majority union does not systematically overlook the 290 See, e.g., U.S. SECRETARY OF LABOR’S TASK FORCE ON EXCELLENCE IN STATE AND LOCAL GOVERNMENT THROUGH LABOR-MANAGEMENT COOPERATION, WORKING TOGETHER FOR PUBLIC SERVICE: FINAL REPORT (1996). 291 Martin H. Malin, The Paradox of Public Sector Labor Law, 84 IND. L.J. 1369 (2009); Joseph E. Slater, The Court Does Not Know “What a Labor Union Is”: How State Structures and Judicial (Mis)constructions Deformed Public Sector Labor Law 79 OR. L. REV. 981 (2000). 292 See, Malin, Paradox, at 1393-94; Charles Taylor Kerchner & Julia E. Koppich, Organizing Around Quality: The Frontiers of Teacher Unionism, in TOM LOVELESS, ED., CONFLICTING MISSIONS? TEACHERS UNIONS AND EDUCATIONAL REFORM (2000). 293 U.S. OFFICE OF PERSONNEL MANAGEMENT, LABOR-MANAGEMENT PARTNERSHIP: A REPORT TO THE PRESIDENT (2000), available at http://www.opm.gov/lmr/report. 294 Malin, Paradox, at 1396. A variation is the Minnesota law creating a meet and confer process for professional employees, Minn. Stat. § 179A.08, although it allows for only a single representative. 65 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX interests of minorities. 295 We would allow officers to belong both to the minority union and to the majority union so that they would not have to give up the benefits of majority union membership (the ability to vote on leadership and vote on contract ratification, the right to receive insurance and legal representation paid for by union dues) but also could gain the benefits of membership in the minority union (the ability to have a voice in the minority union’s governance and priority-setting policies). Thus, law would have to change in order to prohibit majority unions from disciplining members for dual unionism. We see several possible advantages to our proposal. Police unions have been isolated from the rest of the labor movement in many ways, but particularly in their disconnectedness from the social movement unionism principles and practices that have reinvigorated (even if they did not rebuild) many other unions. A police minority group that shares a self-interest with Black Lives Matter or Moral Mondays is ideally situated to start trying to transform the culture of the police department and the police union. A minority union might find allies among the activists of Black Lives Matter and other groups, which might empower the minority union to stand up to what might be considerable pressure from the police union. That is a type of protection for whistleblowing that simply cannot be legislated or enforced by contract. And it might create momentum that would attract quiescent dissenters from among the rank and file to abandon their reflexive support for the union and its defense of miscreant officers. There are precedents for this. As noted above, in Los Angeles, the police union partnered with a civil rights lawyer and law professor to conduct an investigation in the Rampart scandal precisely because they feared the union and individual officers would be scapegoated for a larger problem, and other unions have tried to build bridges to civilian groups to stave off attacks on the union. 296 295 Marion Crain & Ken Matheny, “Labor’s Divided Ranks”: Privilege and the United Front Ideology, 84 CORNELL L. REV. 1542, 1594-96 (1999); Marion Crain, Critical Race Studies: Colorblind Unionism, 49 UCLA L. REV. 1313, 1322-23 (2002); Marion Crain, Whitewashed Labor Law, Skinwalking Unions, 23 BERKELEY J. LAB. & EMP. L. 211, 224-28, 228-29 (2002); Michael Selmi & Molly S. McUsic, Difference and Solidarity: Unions in A Postmodern Age in LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES 429, 431-33 (JOANNE CONAGHAN, et al., eds. 2002); Maria L. Ontiveros, A New Course for Labor Unions: Identity-Based Organizing as a Response to Globalization, in id. at 417, 422-24 (JOANNE CONAGHAN, et al., eds. 2002); Alan Hyde, Employee Caucus: A Key Institution in the Emerging System of Employment Law, 69 CHI.-KENT. L. REV. 149, 158-62 (1993); Ruben J. Garcia, New Voices at Work: Race and Gender Identity Caucuses in the U.S. Labor Movement, 54 HASTINGS L.J. 79 (2002). 296 See supra notes [PPL and Rampart] and “building their own bridges to civilian groups” 2016] POLICE UNIONS 66 C. Will This Version of Members-Only Unionism Weaken Public Sector Unions? And Is That a Bad Thing? There are a number of large and small objections to any proposal to adopt any form of members-only bargaining, even one as minor as this. One major concern is that the proposal does too little. It is not clear that adopting this limited duty to meet and confer with minority organizations will change very much. Police officers have shown themselves to be quite loyal to their unions. Our proposal leaves the majority union in charge of the economic contract terms and, in some jurisdictions where the disciplinary system is in the contract rather than written into statute, the disciplinary system. These are the two things that police care most about, and the disciplinary system is the thing that concerns police reformers the most. 297 Moreover, many protections are written into statute, and no system of union representation will change that unless the majority union is weakened to the point that it cannot block legislative change. But the modesty of the changes could be seen as a feature rather than a bug – it would change too much too fast, which might allow for innovation in the fertile pockets of progressive police activism that do exist without destabilizing existing bargaining relationships in departments that are not already dysfunctional. A second major concern is that the minority union would be easily undermined. Given the radioactive nature of some of the issues the minority union might wish to discuss with management – e.g., civilian review boards, the officers’ practice of “huddling” before making reports on violence, racial disparities in arrests for minor infractions – a minority union would face considerable pressure from the majority union and its members unlike those faced by other caucuses within unionized workplaces. In janitors’ unions, for example, few members of the union show up at meetings and most probably don’t really care much about non-core contractual issues. But it is easy to imagine a police minority union being quickly co-opted or sabotaged by internal union confederates. Officers opposed to reform might sign up en masse to join the minority union precisely to take it over and kill it. Or minority union members might face intense pressure to defect to the majority union so that the minority union would dissolve. 297 For example, Professor Rushin labels as problematic seven features of union contracts or statutes, all of which concern the investigation and handling of discipline: delays in interrogating officers suspected of misconduct; giving officers access to evidence before interrogation; limiting consideration of or supervisor access to disciplinary history; limiting length of interrogation; limits on the investigation of anonymous complaints; limits on civilian oversight of discipline; and allowing arbitration of disputed disciplinary sanctions. See Rushin, supra note 8 at Figure 1. 67 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX There are ways to design a minority union system to address these concerns. Perhaps minority union membership could be confidential, leaving the job of physically meeting and conferring with the brass to the most courageous few who felt they could publicly stand the pressure. Or the minority union might rely on the labor law principles that have allowed unions to fire stewards when they believe the steward has become ideologically opposed to the union. 298 Public sector labor law in most jurisdictions already protects union activists from retaliation or harassment, 299 and such protection would simply need to be extended to supporters of the minority union as well as the majority union. To the extent that a system of representation gained traction, it could produce the kind of chaos and cacophony that led to criticisms of the proportional representation system in California before 1976. 300 It could lead to expensive and slow discussions rather than any real change in policy. Management could play the two unions off against each other, thus weakening both. Those concerns could be ameliorated by careful design. The system could be limited to just one majority and one minority union. Moreover, to the extent that the change were more ambitious in giving a minority union power to negotiate any kind of binding agreement on any terms currently subject to the duty to bargain with the exclusive representative, a number of complex problems would arise. Courts or public employee relations boards would have to decide how to recalibrate the mandatory subjects of bargaining to enable participation of the minority union. Significantly, they would have to decide whether discipline remains a mandatory subject of bargaining and, whether or not it is, they would have to determine how to allow the minority union to play a role in negotiation over the disciplinary system. If the minority union were empowered to be at the bargaining table over design of the disciplinary system, then questions would arise over how to involve the minority union in the interest arbitration or factfinding process that often resolves bargaining disputes over mandatory subjects of bargaining. Of course, we acknowledge that even if the mildest version of our proposal were offered as legislation, it may be impossible to enact or implement, precisely to the extent it would weaken extant unions. In 2011, when Wisconsin eliminated bargaining rights for most public sector 298 See THE DEVELOPING LABOR LAW at __ (2014). See generally MALIN, HODGES, SLATER & HIRSCH, PUBLIC SECTOR EMPLOYMENT: CASES AND MATERIALS chapter 6 (3d ed. 2016). 300 Grodin, supra note __ at 728 (describing the uncertainty under the Brown Act as to whom the public employer was obligated to meet and confer with). 299 2016] POLICE UNIONS 68 employees, it did not eliminate such rights for public safety employees.301 Ohio, in contrast, tried to eliminate bargaining for every public employee and the Ohio law failed to pass. 302 Both of these are reminders of the power of public safety unions even in climates that have a strong antiunion strain. But, we suggest, the advantage our proposal has over most others being offered is that ours has the possibility of garnering support from some rank and file police officers who are dissatisfied with their union but see a wholesale assault on police unionism as worse than the status quo. Advocates of the benefits of police unions to police reform in the 1960s insisted that police unions could train officers in the values of democracy and could remedy the alienated and repressive mentality of the police by “involving as many policemen as possible in decision making on all aspects of the department’s job.” 303 Creating an institutional mechanism that gives space for minority unions to voice their concerns would create incentives for existing unions to account for these opposing views. This might facilitate the development of the values of “trust, cooperation, communication,…leadership, [and] respect.” 304 Working through inevitable disagreements would provide opportunities for officers to learn these important values. 305 Officers might gain maturity, patience, and tolerance for different points of view that can translate into better relationships and engagements with the communities they serve. 306 Additionally, deliberating through disputes and coming to a successful resolution will involve creativity 301 [cite Act 10 of 2011 in Wisconsin]; see Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640 (7th Cir. 2012) (rejecting equal protection challenge to Act 10’s exclusion of some employees from statutory right to bargain); Madison Teachers, Inc. v. Walker, 358 Wis.2d 1 (2014) (same). 302 See Rosenthal, supra note 1 at 693. 303 Sklansky, at 79, citing William A. Westley, Violence and the Police: A Sociological Study of Law, Custom, and Morality xvii (1970). See also George E. Berkley, The Democratic Policeman 29-39 (1969). 304 Understanding Community Policing, at 136. 305 Political scientist William Ker Muir concludes that one quality of good policemen, those officers who are able to handle the “contradiction of achieving just ends with coercive means” is “developing an enjoyment of talk” because it, in part, helps officers avoid isolation, adds to “his repertoire of potential responses to violence.” Police: Streetcorner Politicians 4 (1977). 306 Todd Wuestewald & Brigitte Steinheider, Shared Leadership: Can Empowerment Work in Police Organizations? The Police Chief, Jan. 2006, at 48, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&articl e_id=789&issue_id=12006 (noting that rank and file graduates of the Leadership Program gained maturity, were groomed for leadership such that a disproportionate number have achieved promotions, and continued to remain “consistently…more engaged in city and community issues generally.” “The communications and interpersonal skills individuals learn and apply in the process of making collaborative, department-wide decisions has a maturing affect on those involved.”). 69 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX and problem solving, skills that are consonant with abilities they will have to develop to successfully engage in community policing. 307 The reasons for encouraging a multitude of voices in reform-oriented policy making is not simply to increase buy-in and reduce resistance. Rather, their contributions can help make the reforms themselves more effective. 308 There are two reasons for this. First, policy-makers both within and outside the department often believe that their expertise makes them better equipped than the rank and file to determine what reforms are necessary and how best to bring them to fruition. They may be completely unaware of their own limitations and information gaps. This “fallacy of expertise” 309 causes policy makers to overlook the benefits of obtaining input from the individuals who will be tasked with executing their vision. 310 However, as previously discussed, rank and file officers will have insights to share based upon their day-to-day engagement in street policing. Involving top command in policy-making is not an adequate substitute for the expertise and knowledge of the rank and file because high-level police managers have often lost touch with changed circumstances on the street. Furthermore, top command officers are disconnected from the actual experiences of officers on the street and thus may be unaware of the challenges posed by the reform to street officers’ daily work. It would be more efficient to identify these issues prior to implementation rather than after policies and procedures have been changed. The second reason to reform public sector labor law to require departments to meet and confer with minority unions is that their involvement could help mitigate inevitable misunderstandings and miscommunications 307 George L. Kelling, Robert Wasserman, & Hubert Williams, Police Accountability and Community Policing, reprinted in Community Policing: Classical Readings, at 272 (noting that “Often, management’s attempt to manage culture through command and control merely fosters suspicion, isolation, insularity, demeaning perception of citizens, grumpiness, the ‘blue curtain,’ and cynicism.”)(citing Peter K. Manning, Police Work (1979)); Edwin Meese III, Community Policing and the Police Officer, reprinted in Community Policing: Classical Readings, at 310 (noting that “It is unlikely that improved communication will occur between police officers and citizens if effective communication within the department has not been established first.”). 308 Todd Wuestewald & Brigitte Steinheider, Shared Leadership: Can Empowerment Work in Police Organizations? The Police Chief, Jan. 2006, at 48, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&articl e_id=789&issue_id=12006 (noting that when shared leadership was employed in Oklahoma, accepting the decisions made by the group “were usually vindicated because they proved to be sound choices based on the firsthand knowledge and insights of those closest to the work.” 309 Id. at 171. 310 Id. at 174, 172 (noting that “[a]ll too often the reformers have not recognized the particularity of their own narrative, the importance of including actual police officers in the policy development process, or the variable and open-ended nature of the cultures and actions within which and to which the reforms will have to apply.”) 2016] POLICE UNIONS 70 that occur when new policies are explained to them. Furthermore, the rank and file will undoubtedly encounter unexpected problems during the process of implementation. This “implementation gap” 311 can occur even if officers are attempting to apply the reform in good faith. Policy makers cannot anticipate every circumstance that officers will confront when they attempt to put a new policy into practice. Thus, they cannot possibly create rules that govern every situation. 312 When faced with the inevitable ambiguities they will confront on the street, officers will have to interpret and modify the policy. 313 This process of interpretation can have both unforeseen and unintended consequences not contemplated by the reformers. 314 Also, if they were not involved in conceiving the policy, they may not appreciate its goals and intent. Hence, their choices and judgments will not be informed by a deep understanding of the policy’s underlying purpose. As a result of the implementation gap, policies may not work as reformers intended, even when the rank and file are doing their best to abide by it. If they are not given a voice, reformers may not find out about the problems. Furthermore, top command and policy makers may attribute the gap between theory and practice to rank and file obstinacy. 315 In response, top command may increase rank and file surveillance in order to control their behavior and punish them for transgressions, not realizing that the problems are due to their own inability to anticipate how the policy would actually work in practice. 316 Ironically, this increased surveillance and control can lead to resistance that may not have existed in the first place. 317 Thus, the failure to involve the rank and file not only deprives the reform of being more effective, but it may also have the unintended effect of generating resistance, as reformers attribute the failure of the policy solely to rank and file obstinance. Two scholars observe, All too often, … this whole process becomes reiterative. The reforms meet with police skepticism, the way the police 311 Id. at 171. See also Brown, at 22 (noting that the “politics of implementation” affect the outcomes of policies). 312 Id. 313 Id. at 170. 314 Id. (writing that “[c]rucially, when the police interpret the reforms, they transform them, resisting them or domesticating them in ways that have consequences unforeseen and certainly unintended by the advocates of the reforms.”). 315 Id. at 171. 316 Id. 317 Hans Toch, Police Officers as Change Agents, at 30 (noting that “[a]ctions inspired by mistrust tend to breed resentment, which fuels obduracy and resistance. Resistance reinforces suspicion, which incites intrusive monitoring moves, which breed resentment. And so the cycle continues….”.); Allen, at 94 (noting that “close supervision and productivity are negatively correlated.”) 71 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX respond to them generates unintended consequences, the negative consequences then inspire another set of reforms that again meets with local skepticism, and so on. The continuous process of reform soon will reach…a point where police are so weary of reform that they become increasingly immovable. Constant reform undermines morale and breeds ever-greater skepticism about reform. 318 Engaging the rank and file in policy-making could help to avoid some of the problems caused by the fallacy of expertise and the implementation gap. With involvement, rank and file officers could make reformers aware of the challenges posed by the policies, both ex ante and ex post. While some might object to involving the rank and file, this ignores the fact that rank and file officers are already involved in making policy on the street, albeit, informally, through their day to day interactions with citizens. 319 Thus, if reformers involve the rank and file in policy-making, this might enhance the effectiveness of the reform 320 and motivate the rank and file to work towards making the policy successful. Our proposal can also help to slowly change the culture of police departments. Research suggests that people often engage in behaviors that they believe others are also engaged in. In other words, people imitate those around them. Psychologists refer to this as “social proof.” 321 However, often people’s assumptions about others’ beliefs are based on inaccurate information. One way to overcome mistaken beliefs about what others are thinking is to make other views salient and public. By giving minority voices within the department a formal opportunity to speak up and be heard, there is the opportunity for other rank and file officers to see that their potentially more open-minded and progressive views are shared by others. Additionally, this might also give outside reformers the opportunity to understand that there are officers within the department who support their proposals and this could lead to the forging of partnerships between outside reformers and officers within the department that can facilitate reforms. Moreover, if decision-makers are truly considering rank and file input, it is likely that the policies that are eventually enacted will incorporate some of their suggestions. Rank and file officers have quite a bit of useful and important knowledge and expertise to share given their intimate 318 Bevir & Krupicka, Police Reform, at 170. Allen, at 93. 320 Bevir & Krupicka, Police Reform, at 177 (concluding that “[p]erhaps a more bottomup approach to police reform will bring greater success in implementing reforms.”). 321 Jonah Berger, Contagious: Why things Catch On 128 (2013). 319 2016] POLICE UNIONS 72 knowledge of the street. 322 They will have ideas that policy makers did not even think to consider and they can also highlight unanticipated problems. Additionally, reformers may be unaware that their ideas as initially proposed are simply unworkable for a variety of reasons from the mundane to the insurmountable. 323 Thus, rank and file officers can help fill the gap between theory and practice. CONCLUSION The prevailing narrative suggests that rank and file officers in general, and police unions in particular, are obstacles to reforms that would make policing more transparent, accountable, and legitimate to the citizenry. While there is certainly strong evidence to support this view, we have highlighted examples of rank and file officers acting individually, and some unions, being key partners in reform efforts that can improve the quality of policing. The key question is how to increase the opportunities for officers to be a positive force for the improvement of police services. Discussions of the need for police reform understandably focus on problematic officers and on unions that appear to be irredeemably opposed to any reform oriented policies. However, what is often lost in these discussions is recognition of the officers who could be partners in reform efforts and who do not have a mechanism for making their voices heard within the department, especially when the police union for whatever reason either does not support their views or does not take their views into account. Our proposal 322 As one policing scholar notes, the rank and file “often have important insights into impediments to more effective policing…. [They] have a wealth of unorganized and underutilizing knowledge about which police activities are not working and why …. Sadly, this kind of knowledge is not exploited … in shaping strategies.” Bayley, Police Reform, at 22. See also, Herman Goldstein, The New Policing: Confronting Complexity, reprinted in Community Policing: Classical Readings, at 79. Todd Wuestewald & Brigitte Steinheider, Shared Leadership: Can Empowerment Work in Police Organizations? The Police Chief, Jan. 2006, at 48, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&articl e_id=789&issue_id=12006 (noting that when shared leadership was employed in Oklahoma, accepting the decisions made by the group “were usually vindicated because they proved to be sound choices based on the firsthand knowledge and insights of those closest to the work.” Additionally, when “senior managers doubted a Leadership Team decision…, yet lent their support regardless, [such instances] became milestones of trust and confidence for the agency.”); Herman Goldstein, The New Policing: Confronting Complexity 79 in Community Policing: Classical Readings (“In rank-and-file officers, there exists an enormous supply of talent, energy, and commitment that under quality leadership, could rapidly transform American policing.”) 323 Bevir & Krupicka, Police Reform, Governance, and Democracy, at 157. See also id. at 170 (noting that the reforms may not be “a suitable fit with the lived experience of the officers.”). 73 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:XX gives these officers a voice by creating an institutional mechanism to ensure that their views are heard. Our proposal will expand the duty to meet and confer to include subjects that are not currently bargainable, but it will prevent the minority union from re-negotiating the economic terms and disciplinary system created by the majority union in the collective bargaining agreement or invoking the interest arbitration system used to resolve bargaining disputes between the majority union and the department. Thus, we believe departments and police unions will not strenuously oppose our reform, as it respects their interests. Our proposal, moreover, is built on successful labormanagement partnerships that have been used in both federal and state systems and that demonstrably improved productivity, morale, and the quality of service provided by government agencies in which these types of labor-management councils have been implemented. Mechanisms to improve labor-management cooperation are essential to police reform. It is misguided to suggest that the solution is simply to make it easier for departments to fire or discipline officers without changing the way that management relates to the rank and file for at least three reasons. First, it may be politically impossible to significantly reduce contractual or statutory protections for officers accused of misconduct. Second, and this is by far more important, even if every officer who kills a civilian unjustifiably were fired promptly and criminally prosecuted, it is an empirical question whether police violence would decline through the operation of specific or general deterrence. 324 If some number of unjustified police shootings are the result of poor training or bad management, one puts a great deal of faith in enlightened police management to assume that eliminating job protections for rank and file officers will allow management to dramatically alter patrol officers’ behavior to better safeguard the public. Even if police union contracts and statutory LEOBORs were revised to provide a speedier and more transparent disciplinary process that would make it easier to terminate the employment of officers found to have used improper force, still policing behavior might not change dramatically if police management encourages practices that lead to excessive force, arrests for minor infractions, or other kinds of law enforcement strategies that harm minority communities. Third, as a normative matter, even if there would be instrumental benefits to eliminating job protections for officers because it would reduce police violence, there is the normative question of what kinds of procedural protections police officers should have when accused of 324 In this context, it is worth noting that there is no evidence of less unconstitutional police conduct in jurisdictions like Virginia and North Carolina that have no public sector bargaining than in jurisdictions that have it. 2016] POLICE UNIONS 74 misconduct. 325 Allowing a diverse set of officers to participate in reform oriented policy-making would force the primary union to account for minority voices, force management to account for a diversity of views, and help management and rank and file officers to develop trust. Providing them voice and accounting for their input shows them respect, gives them a sense of ownership, 326 and will likely increase their perceptions of the department’s legitimacy. The benefits of experimenting with giving diverse voices a say in reform-oriented policy-making is well worth the effort. 325 As Kate Levine argues, the procedural protections that police have negotiated for in their union contracts or lobbied for in legislation are a model for how the most troubling aspects of the criminal justice system should be reformed. Instead of eliminating these protections when police are suspected of crime, she argues, these protections should be extended to all criminal suspects. Levine, Police Suspects, supra note __. 326 Bevir & Krupicka, Police Reform, at 172 (“Reformers need to do more to secure prior buy-in from rank and file officers, or the professional organizations that represent them, if they want the rank and file to have a sense of ownership over the reforms.”).