A conservative response to police-reform protests

Intense public protests and riots following George Floyd’s deadly encounter with a Minneapolis police officer in May have caught many conservatives off guard. Because of their overall support for police officers and their respect for public order, conservatives seem generally troubled by the public reaction. They have – at times, in a kneejerk manner – defended police forces and directed their ire at some of the most unreasonable “reform” proposals.

However, conservatives ought to do more than chastise looters or complain about leftist proposals such as “defunding” police departments. Instead of viewing the police-reform movement as a danger, they should see it as an opportunity to remind people that the policing problem is primarily a union problem. 

Conservatives have been warning for years that public-employee unions protect misbehaving employees and squelch reform. Now that this point finally is getting a hearing, they should steer the policy conversations in a productive direction – and remind the public that they have been right all along.

What do unions have to do with any of this? Police departments should just fire the bad cops.

Police unions have made it virtually impossible for police chiefs to reform their departments, get rid of the small number of thugs within their midst and root out police corruption. There are striking similarities with teachers’ unions. The 2014 Vergara decision in Los Angeles County revealed that a small percentage of unfit teachers mis-educate large numbers of California students, causing a lifetime of harm. Likewise, a small number of problem officers – protected from firing because of those union-secured protections – cause a large number of recurring problems and harm many citizens.

The Minneapolis police chief was hired as a reformer – and yet was powerless to make meaningful changes within his department. “Many of his team and leadership are on board with reform,” said Minneapolis City Council President Lisa Bender. “They’re leading change. But I think they’re up against so many barriers. The union has very vocally stood with the police officers who were involved in George Floyd’s death. They’ve long resisted, stopped change with every mechanism they can.” The same dynamic takes place in departments across the country.

“It has become a truism among police chiefs that 10 percent of their officers cause 90 percent of the problems,” according to a report from the federal government’s National Institute of Justice. “Investigative journalists have documented departments in which as few as 2 percent of all officers are responsible for 50 percent of all citizen complaints.” The officer at the center of the Floyd controversy had 18 previous complaints and another officer involved in that incident faced six previous complaints. Unions assure that problem officers stay on the job, where they continue to abuse the public and poison the culture within police departments.

Before we look at solutions, is police brutality really a systemic problem?

The data suggest that it is indeed a major problem. “Police officers kill about 1,700 Americans every year,” explained Lyman Stone, the chief information officer for Demographic Intelligence, in a recent column in the Public Discourse. “In other words, police killings have made up about one out of every 12 violent deaths of Americans between 2010 and 2018. That’s including American military deaths in Afghanistan, Iraq and elsewhere during that window. Indeed, more Americans died at the hands of police officers during that period (about 14,400) than died while on active military duty (about 9,400).”

Beyond the raw numbers, overly aggressive policing instills unnecessary fear among ordinary citizens. There’s a reason so many Americans took to the streets over the killing of Floyd. It’s not about one tragedy, nor is it the result of Antifa agitators (even if some radicals did promote mayhem). Many protesters have experienced heavy-handed policing in their communities. Many Americans – especially, but not only minorities – are afraid that a minor police encounter could escalate into a violent confrontation, as has happened in a number of highly publicized cases. 

Against this backdrop of fear and distrust, people are less likely to help officers during their investigations. As conservatives, we should applaud when free citizens (peacefully) insist that their government change its ways.

Aren’t these aggressive techniques simply the result of those crime problems?

The percentage of police killings as a proportion of all violent deaths in the United States has risen dramatically since the 1960s (with some ups-and-downs along the way) even though violent crime rates now are near historic lows. It’s not about growing crime, but changing public policy. “The frequency of police killings has risen by much more than criminal or terrorist violence, which suggests that rising police violence is probably not a response to rising criminal violence,” Lyman concludes. His analysis finds that “police violence in America … is disproportionate to the actual threats facing police officers, and it has risen significantly in recent years without apparent justification.”

Of course, unions aren’t solely to blame for this development. The nation’s drug war encouraged police forces to take a more militaristic approach to policing. So did the war on terrorism. The public demanded tough-on-crime laws when crime rates were increasing in the 1990s. Unions pounced on those opportunities and used them toward their ends – grabbing more resources and enacting tougher protections for officers. Despite the complex historical reasons that American police forces became more aggressive, unions – and their political allies in Congress and state legislatures – remain the single biggest current impediment to reform.

How exactly do unions impede firing of bad cops?

California’s union-friendly Legislature continually passes laws that give public-sector unions of all type special collective-bargaining rights, but the single most notable factor hearkens back to the 1970s. That’s when California adopted the Peace Officers Bill of Rights, which – when you come to think of it – turns the U.S. Bill of Rights on its head. The Bill of Rights gives the People protections against their government by limiting its abilities to, say, restrict their speech, take their property and convict them without due process.

By contrast, the Peace Officers Bill of Rights gives the government officials who enforce the laws significant protections not afforded other citizens, including time limits on any investigation, knowledge of an investigation prior to an interrogation, access to evidence prior to interrogation and limitations on when they can be interrogated. Other similar laws give officers the opportunity to meet with one another and, essentially get their stories straight, before meeting with investigators. Police unions championed all of these laws.

An extensive administrative appeals process frustrates and exhausts those who would hold misbehaving officers accountable. Officers are even paid during interrogations and while they are on disciplinary-related leave. Democratic California has the most far-reaching protections for accused police officers thanks largely to the influence of those unions. The Sacramento Bee’s Gil Duran recently documented the degree to which law-enforcement unions fund political campaigns. Only one sitting California legislator out of 120, Republican Sen. John Moorlach of Costa Mesa, has refused any money from the police unions.

As if the Peace Officers Bill of Rights didn’t do far enough, local police unions are guaranteed a seat at the table to set additional protections under California’s Meyers-Milias-Brown Act, which was signed in 1968. Under the MMBA, cities and counties are required to negotiate with labor union leaders (including police union leaders) about issues within the “scope of representation,” which includes “all matters relating to employment conditions and employer- employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment.”

Those problems involve union power at the state Capitol, but aren’t our local unions are more responsive to citizen concerns?

Actually, local union contracts typically provide additional protections that go far beyond POBOR. In its 2016 analysis, the Police Union Contract Project reviewed contracts between local police unions and America’s 100 largest cities, many of them in California. As a result, the study found, most of these cities offer a far-reaching set of protections. The project detailed six specific ways that collective-bargaining contracts impede police discipline:

First, they impose stringent time limitations on filing an incident complaint or disqualify such complaints if investigations drag on for too long. Second, they prevent departments from interrogating officers immediately after an incident takes place, which gives them time to consult with attorneys and figure out a way to evade accountability. Third, they provide officers with internal information that civilians do not get prior to interrogations. Fourth, they require cities provide paid leave and pay the legal expenses or settlements related to misconduct allegations. Fifth, they restrict the use of past misconduct information to factor into the current investigation. Sixth, they place limits on the consequences that police officers can suffer if department upholds misconduct allegations.

Also chillingly important: These contracts typically give officers the names of witnesses against them, including fellow officers. That virtually assures that no fellow officers will ever testify against one another – the ramifications for “ratting out” other officers would be severe. That’s how unions create a culture of protection – one that often includes “blue amnesia” as officers conveniently forget what transpired during a troubling police encounter.

Local police unions typically are the most powerful political actors at the local level and they spend inordinate amounts of money electing allies to City Councils. In Santa Ana, Calif., the city’s notoriously aggressive police union recently spent $500,000 recalling the one city council member who not only questioned unaffordable raises for police officers, but who had consistently called for a citizens oversight committee to look at misconduct claims.

Can the public really afford these reforms? Isn’t it costly to create new commissions and additional oversight regulations?

The better question is whether the public can afford not to make these changes. Currently, the only justice that takes place when a police officer misbehaves comes from the civil courts – where taxpayers routinely pay multimillion-dollar settlements. As Will Swaim wrote in the Orange County Register regarding reform-resistant Santa Ana, “Santa Ana police in 2016 cost their city $6.8 million to settle two wrongful death suits. Or that in the same year, Santa Ana police raided a legal marijuana dispensary, and smashed surveillance cameras – except for the few they missed, cameras that captured them ransacking the store, ridiculing the store’s disabled owner, and then remarkably eating marijuana edibles and playing darts.”

In the latter case, taxpayers provided a $100,000 settlement to the marijuana shop. One officer who was fired in that incident had previously cost the city $2.45 million after he shot and killed a man after a high-speed chase. He kept his job after that shooting and, in 2017, a judge ordered Santa Ana to rehire the officer and provide him with full back pay. Then various police-officer lawsuits assured that the city kept disciplinary records related to that incident out of public view.

Aren’t there other ways to reform without dealing with unions?

Police unions make it nearly impossible to discipline, reassign or fire officers. What kind of reforms could you make in your business if you didn’t have the ability to make substantive personnel changes? How much change could you make in your organization if you had to meet and confer with employee unions on virtually any workplace changes?

A 2019 working paper from the University of Chicago, “Collective Bargaining Rights and Police Misconduct: Evidence from Florida,” finds that “after sheriffs’ deputies in Florida were allowed to unionize, violent incidents increased by 40 percent. … Our findings suggest that the conferral of collective bargaining rights is associated with large increases in violent misconduct.” This is the latest evidence suggesting that unionization is the key issue that reformers must tackle. Without addressing it, we’re only chipping away at the problem.

Following the 2014 police shooting of Michael Brown in Ferguson, Mo., the U.S. Department of Justice produced a report that made the following conclusions: “Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.”

That report detailed the cultural problems found deep within police departments. The unrest following the Brown shooting – at least the initial peaceful protests from local residents – gave voice to long-simmering public concerns. Think again to the example with teachers. Public schools continue to operate largely as they have for a century. Charter schools have been a great boon to public education – especially in poor communities – because they free school administrators from the shackles of union-defended, bureaucratic policies. With policing, there are no similar competitive mechanisms – although Camden, N.J., has disbanded its department and started to rebuild it from scratch.

How should Republicans respond to Democratic reform proposals?

Police reform is not primarily a partisan issue given that both parties have embraced similar policies, albeit for different reasons. Democrats are allied with unions, while Republicans tend to instinctively support law and order. Nevertheless, Republicans shouldn’t let Democratic politicians, who have been most closely allied with law-enforcement unions, claim the reform mantle. Democrats have been a big part of the problem, especially in California where they’ve received the lion’s share of union political contributions. Democrats also are taking reform into an odd direction – by focusing almost solely on the racial component of what is fundamentally a union problem.

California Attorney General Xavier Becerra, for instance, is allied with police unions and has resisted efforts to implement a new state law that opens disciplinary records to public review. Becerra recently announced a supposedly bold police-reform plan, but, as the Orange County Register noted in an editorial blasting his empty police-reform rhetoric, “Becerra’s department wouldn’t release past records. He took the matter to court and repeatedly lost his cases. … Becerra even threatened to sue journalists who secured records of past and current police officers who had been convicted of crimes – records they received from a request to his own department.”

It would be a shame if Republicans let politicians who were the biggest impediment to meaningful reform position themselves as change agents – or allow Democrats to champion policies that will only exacerbate the problem. The overly aggressive police policies that are at the heart of the fracas have a racial component, of course, but they mainly are the result of union policies that squelch reform and make it nearly impossible to fire bad officers.

Don’t we need to shield records to protect police officers?

Sunshine is the best antidote to misbehavior. In fact, the entire idea of self-government is predicated on the public’s access to information about how its government operates. Secrecy allows misbehavior to fester without accountability. In California, disciplinary records were widely available before the 2006 Copley decision and there’s no evidence that this endangered police officers. The state passed Senate Bill 1421, which has begun opening up those records again to public scrutiny. 

In the wake of the new law, newspapers reported on “criminal cops” – police officers and former officers who were convicted of serious crimes but allowed to continue working at their jobs. We learned that police departments often helped these criminal officers plead down their crimes from a felony to a misdemeanor, thus enabling officers to continue working in law enforcement. This is important information that protects the public, yet unions have resisted the release of such information every step of the way.

Why blame unions, which are only doing what they’re supposed to do? Why not blame the politicians who do their bidding?

Both groups deserve blame given the symbiotic relationship between union money and political office-seeking. The politicians court the unions, which then make demands on the politicians. Unfortunately, Republican elected officials have been every bit as bad as Democratic ones, especially at the local level – where police union contributions and mailers depicting their chosen officials as “pro-public safety” can mean the difference between winning and losing. One of the best ways to reduce union power is if politicians refuse union financial contributions. Any Republican who accepts those contributions ought to forfeit the GOP’s endorsement.

We still shouldn’t leave unions off the hook. Like all unions, the police unions do a good job for their members, if you define a good job as securing an unsustainable level of pay and benefits for their members – and protecting virtually all of them from accountability. The problem is these unions don’t do a good job for the public, which pays their bills, suffers from the crowding out of public services and must live with the way officers perform their jobs. The unions use heavy-handed tactics to intimidate politicians into giving them what they want, but if more politicians banded together to reject union contributions they would be better able to resist the temptation.

The public has every right to take aim at the special government privileges that allow the current system to fester. That’s why conservatives have applauded the U.S. Supreme Court’s Janus decision, which lets rank-and-file employees opt out of unions and stop paying all of their dues. That’s one step on the road to reform – but the next step is for political candidates to stop seeking union support.

If police lose immunity, won’t they be victimized by frivolous lawsuits?

One widely discussed reform idea would eliminate “qualified immunity” for police officers and other government officials for actions taken in their official duties. It’s one of the most fascinating ideas out there. The U.S. Supreme Court in 1982 gave government officials that outsized protection – even if they clearly have violated a citizens’ constitutional rights. Yet there’s little evidence that removing that protection will lead to a tsunami of frivolous lawsuits.

As the Institute for Justice explains, “The vast majority of judgments and settlements against government officials are paid by government employers and their insurers. In fact, academic research has found that when qualified immunity has been overcome, ‘individual officers contributed to settlements in just 0.41 percent of these cases, and paid approximately 0.02 percent of the total awards to plaintiffs.’ There is no reason to believe that ending qualified immunity would cause a drastic shift in those numbers.”

In reality, unions and other organizations would offer liability insurance policies to their members. Premiums would rise for problem officers who are subject to repeated claims. It would provide a financial check on misbehavior, just as insurance always does. As expected, public-employee unions are lobbying against any such changes.

Don’t the police need our support? Without them, the nation will descend into anarchy.

No conservative questions the need for law enforcement. But it does no service to the vast majority of honest and hard-working police officers to perpetuate a system that protects the worst of the bunch. It doesn’t help police departments or individual officers to embrace union-policies that alienate the people of whom they are sworn to protect and serve. We’d argue that reforming police departments and reducing union protections is the best way to support police and to make it easier for them to perform their often-times difficult jobs.

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