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Policing in the USA

CIVIL LIBERTIES ... The Real Reason Police Unions Enable the Worst Cop Abuses ... Police unions were created to get rid of bad cops. But today they protect them.

Burgess COMMENTARY

Peter Burgess

CIVIL LIBERTIES ... The Real Reason Police Unions Enable the Worst Cop Abuses ... Police unions were created to get rid of bad cops. But today they protect them.

Photo Credit: https://www.nycpba.org

There is no greater symbol for excesses in American policing than the unending tirades by Patrick Lynch, New York City Patrolmen’s Benevolent Association president, in his war of words, work slowdowns, displays of disrespect, insubordination and complaints lapped up by right-wing media about NYC Mayor Bill de Blasio’s administration.

But there might be a cynical method behind the madness of Lynch’s ever-escalating feud that has not been widely covered. This loudmouth union leader may be trying to bully his way into a better deal for his 24,000 members after not having a contract for four years. Amid his tirades about City Hall not showing sufficient respect, he has said that raises recently accepted by eight other city uniformed officer unions were not good enough for him.

“Compared to our fellow police officers, we are the lowest paid,” Lynch said last month, frowning on the announcement that eight other New York City unions—including police detectives, lieutenants, captains and wardens—accepted an 11 percent raise over seven years. He’s recently added that the city has a “moral obligation” to correct pension “injustice.”

Lynch’s advocacy is so selfish and cartoonish that it eclipses serious issues facing police in New York and nationwide. Namely, what can be done to reform a police culture that too readily embraces excess suspicion and force—from racial profiling, to pre-emptive arrests (both of which de Blasio pledged to stem), to protecting cops who kill unarmed people, to local police using military weapons at protests and during drug raids.

If you look past a splash page on PBA local’s website vainly showing Lynch talking to a who’s who of right-wing media and scan their press releases, what emerges is a long list of issues that trace why the public is fed up with abusive policing. Lynch’s union denies there’s a problem with excessive force; denies there’s a police slowdown; chastizes top city officials who said that Eric Garner didn’t deserve to die from a police choke hold; demands that the mayor fire key staff; criticizes a public-interest group that listed bad cops—all while saying the PBA needs better pay, better pensions, and yes—more secretive disciplinary procedures.

In short, Lynch has become the latest national symbol of everything that is unbalanced, unaccountable, uncompromising, and out-of-control about aggressive and abusive cops. His rants contradict every claim made by New York City Police Commissioner William Bratton that the NYPD is reeling in its previous abusive tactics and retraining its ranks. Lynch’s statements also illustrate a vastly under-appreciated hurdle to real reform: how police unions can oppose, undermine, resist, thwart and block necessary solutions.

“Mayor Bill de Blasio has been in office barely a year, and already forces of entropy are roaming the streets, turning their backs on the law, defying civil authority and trying to unravel the social fabric,” The New York Times’ lead editorial said Wednesday. “No, not squeegee-men or turnstile jumpers. We’re talking about the cops.”

When it comes to ending the scourge of abusive policing, one of the most overlooked factors has been the role of police unions with perpetuating problems. New York City’s PBA is its largest local police union in the nation. Ironically, a strong case can be made that it is not the city’s most violence-plagued police union: that distinction goes to the union representing prison guards at the city’s Rikers Island jail.

“There’s a lot worse stories coming out of Rikers Island than the NYPD,” said Will Aitchison, a lawyer who has represented police and fire department unions for 35 years in disciplinary proceedings and director of the Labor Relations Information System, which trains public safety agencies. The Times’ profile of Norman Seabrook, the Correction Officers’ Benevolent Association president—the Rikers guards—confirms this. It depicts a ruthless union boss who not only matches Lynch in his abrasive verbiage, but also has the political influence to derail local efforts to investigate and discipline violent guards. The latest development in that narrative is the U.S. Justice Department’s announcement that it would soon sue over the jail’s brutal treatment of adolescent prisoners.

Aitchison said it was important to not assume that the problems in New York City were also to be found in all of the 18,000 law enforcement agencies across the country, where 1.1 million people work. (About 70 percent of police officers belong to unions, according to DOJ statistics). He predicted that the war of words between the PBA and mayor would end when the governor imposed a settlement—as Gov. Andrew Cuomo alluded to in his remarks at the funeral of his father, ex-Gov. Mario Cuomo. Aitchison said public brawls pitting mayors and chiefs against local police unions are not new, are often nasty, but do get resolved. As you might expect, the labor attorney also defended police unions.

“Police officers are disciplined more than any other public employees. They have less of a right to spit on the sidewalk,” he said. “With a population of 650,000 [police officers nationwide], you will have people who will engage in misconduct—whether doctors, lawyers or anybody… I tend to think the rate of misconduct is less than other public employees, but it is very visible… It allows people to say the system is broken.”

The Problem or The Solution?

That is what people are saying and it is understandable why that is the case. It is not just that white officers keep killing unarmed black and brown men across the country. During New York City’s recent police work slowdown, the Times reported that New Yorkers felt they were not being preyed on for a change—which is how they described policing-as-usual. Police reform advocates said that the intentional arrest stoppage did not lead to more crime, proving that the NYPD’s aggressive tactics were not necessary.

Of course, it is a generalization to say that the entire system is broken. In a country with more than 650,000 street cops, it is clear the vast majority do not become violent every day on the job—even if daily news reports continually feature errant individual officers. But it is accurate to pinpoint specific aspects of policing, police culture, and institutional biases that perpetuate or dismiss police violence. One facet of that institutional structure is the role that police unions play in protecting bad cops.

It’s instructive to note how modern police unions emerged and have evolved. Most police unions were created in the early 1970s, after a presidential commission issued a detailed report that in part noted that the South’s police crackdowns on civil rights protesters were by departments that were little more than political patronage shops. From an employment law perspective, police were “at-will” hires, meaning they could be hired and fired any time by their bosses. The unions were created to professionalize departments, including instituting collective bargaining agreements with discipline procedures. Nationally, the fine print on these procedures varies, but in most cases even the worst cops are afforded due process rights, including binding arbitration—or relying on a third party to resolve disputes—as the last stage in fighting employment decisions like getting fired.

A half-century ago, these procedures were seen as the cure for the most racist or corrupt police agencies. But today, these clauses, especially binding arbitration, are increasingly seen as problematic because they cannot be overturned even by elected officials, police chiefs, civilian police review boards, or even federal judges who are overseeing reforms in plagued departments under Justice Department settlements.

The list of bad cops who have been fired for violent behavior but won their jobs back—with back pay as if nothing happened—after binding arbitration is striking. Nationally, arbitration modifies or reverses about two-thirds of disciplinary decisions, labor lawyers said. To be fair, there are some cases where police were fired for non-violent offenses and returned to work. But there are many examples of violent cops who are back at work because police unions fought for them, and an arbitrator ruled in their favor.

Recent examples include a Washington state officer who was fired for excessive Taser use and filing false reports; a Philadelphia Lieutenant fired for punching a woman in the face at a parade and arresting her after mistakenly believing that she threw beer on him; a Rhode Island officer who followed two women home in uniform and exposed himself; a Miami officer who shot and killed an unarmed man sitting in a car; an Oakland officer who threw a stun grenade into a crowd who were trying to help a protester who had been shot by police; and more. In some of these cases, such as Philadelphia and Oakland, the cops’ actions were videotaped, and the tapes are very disturbing.

Last month in Cleveland, in another example, a policeman who got into a bar fight and lost his gun and badge, won his job back. A local judge denied the city’s appeal after an arbitrator ruled in his favor. Cleveland.com reported the Cleveland Police Patrolmen’s Association had argued during that arbitration proceeding that other Cleveland Police officers had done much worse and kept their job—to justify reversing his firing.

“The officers cited in the other cases have committed assaults, domestic violence, theft, felony offenses, untruthfulness, and other violent crimes, and have been allowed to keep their jobs with the city,” Cleveland PBA argued, Cleveland.com reported.

“Specifically, CPPA president Jeffrey Follmer referred to separate cases in which: • “One officer pulled his wife put of her car and fired eight shots into it because he did not want her to get the car in a divorce settlement;

• “Another got drunk and threatened his girlfriend with a shotgun;

• “Another officer shot his gun “in a threatening manner” while intoxicated;

• “An officer pulled his gun during a drunken wedding fight;

• “A female officer smeared animal feces on her own apartment walls during rent dispute, and told her landlord to pick up her keys at the department’s gun range;

• “Another officer fled the scene of an accident after he hit a man on a motorcycle.”

The complaints about how union-backed arbitration protects bad cops do not just come from activists protesting excessive force. Federal judges and police chiefs who are trying to change the culture inside departments have criticized this aspect of police unions.

“Just like any failure to impose appropriate discipline by the chief or city administrator, any reversal of appropriate discipline at arbitration undermines the very objectives [of the federal consent decree requiring reforms],” U.S. District Court Judge Thelton Henderson wrote last August, after the Oakland police officer who was videotaped tossing a gas grenade into a crowd of Occupy protesters was reinstated.

Washington, D.C. Police Chief Kathy Lanier similarly bemoaned how too much power has shifted to the binding arbitration process. Last February, she noted that a ruling that ended a six-year contract dispute—which raised salaries and benefits but the D.C. union chief still called “disrespectful”—also rejected the city’s effort to rein in arbitration.

“It is unsuprising that an arbitrator would reject common-sense limitations on an arbitrator’s authority designed to ensure that bad cops stay fired, and instead choose the union’s proposal to expand the scope of disciplinary cases that are subject to arbitration,” her statement said. “This decision just further supports my recent testimony before the [D.C. City] Council that common-sense legislative reform of arbitrators’ authority is desperately needed to ensure that officers who are not fit to serve are not ordered back into the communities by unaccountable arbitrators.”

There are numerous other examples of police unions lobbying to protect their officers from reform efforts. Last summer, the police union in Miami-Dade County, Florida, tried to block the mayor’s office’s plan to install body cameras, filing a grievance saying it interferred with police work. California’s prison guards union, The Correctional Peace Officers Association, is known for aggressively lobbying to build more prisons, fighting sentencing reform and bankrolling law-and-order candidates, Jacobin.com noted, in a provocative article entitled, “The Bad Kind of Unionism.”

Back To New York

There’s no denying that the police union revolt in New York City is coming to a head. On December 30th, Gov. Cuomo vetoed a bill drafted by the Rikers Island guard union that would have moved police brutality prosecutions from the Bronx to Queens, where the district attorney is seen as friendlier to the guards. Another union-drafted bill awaiting Cuomo’s signature or veto would expand disciplinary issues dealt with under arbitration. Last July, the New York Civil Liberties Union wrote to Cuomo urging a veto, saying that if it became law it “would seriously curtail the authority of local government officials to take disciplinary action, including removal or suspension, when a police officer commits misconduct.”

The NYCLU is making the same point that Washington Police Chief Lanier made when criticizing the fine print in a contract settlement that did not reel in arbitration’s ability to protect bad cops. Indeed, after top NYPD managers reassigned the officer involved in Eric Garner’s chokehold death, Patrick Lynch, the Patrolmens Benevolent Association union chief, slammed that reassigment as an unfair political attack on a cop.

“It is imperative that our elected officials, community leaders and the citizens of our city are supportive of police officers who do this difficult job every day if we are to expect them to continue putting themselves in harm’s way to keep the city safe,” he said.

It’s easy to shake one’s head in disbelief at how tone-deaf Lynch is to his unflinching defense of an officer who unnecessarily killed an unarmed man. In his world, the only victims are cops who don’t get everything their way. Yet stepping back from this police union rebellion, it’s revealing to note that Lynch’s diatribes seem to be cut from a decades-old script uttered by police union leaders who did not get their way.

In 1992, Donald Murray, the Boston Police Patrolmens Benevolent Association leader, called the creation of a community appeals board to discipline police in that city, “the ruination of the Boston Police Department… I feel like I’ve been raped and sodomized.” That same year in New York, thousands of off-duty cops staged unruly protests when then-Mayor David Dinkins proposed creating a civilian review board.

There was similar overheated rhetoric in Portland, Oregon, before the Department of Justice sued and then imposed a settlement over how police were using excessive force against the city’s mentally ill, Aitchison, the police labor lawyer said. Portland’s union eventually toned down its rhetoric and agreed to substantial changes including a police monitor, he said. Similarly, Aitchison said the Los Angeles Police Department, under several mayors and police chiefs, including Bill Bratton who now has that job in New York, is not the same department that behaved like an occupying army a decade ago.

“It can happen if anyone is willing to sit down and really talk,” he said, suggesting that Gov. Cuomo, Mayor de Blasio, Bill Bratton, Patrick Lynch, other union heads, and police critics have a lot to gain by addressing all the large issues—settling the NYPD contract, instituting policing and disciplinary reforms—as has been done in other cities.

It will be very revealing to see what unfolds in New York in coming weeks, especially when viewed through the lens of whether police unions are going to stop being part of the problem and start being part of the solution. But for now, the war of words continues.