Police Unions, Practically Speaking

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group teleforum conference call as today, July 21, 2020, we discuss “Police Unions, Practically Speaking.” I’m Dean Reuter, Vice President and General Counsel, Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast in the future and will likely be transcribed.

 

      We’re going to get opening remarks from each of our two guests today for about five to seven minutes, perhaps as long as ten minutes from each, and then some back and forth between our guests. But as always, we’ll be looking for audience questions, so please have those in mind for when we get to that portion of the program.

 

      We’re very pleased to welcome two guests today. Larry H. James is the Managing Partner at Crabbe, Brown & James. And Professor Daniel DiSalvo is a Professor and Chair of Political Science at City College of New York. He’s going to begin first. Professor Daniel DiSalvo, the floor is yours.

 

Prof. Daniel DiSalvo:  Thank you. And I just offer my quick thanks to The Federalist Society for having me on this call. I’m honored to be included. And I’d also like to thank Larry James for agreeing to discuss this important topic with me.

 

      So of course, as we all know, George Floyd’s death in Minneapolis and the ensuing protests and urban riots have brought police departments under enormous scrutiny and widespread hostility. Liberals and conservatives today, in a rare moment of, one could say, bipartisanship, have alike identified police unions as a barrier to salutary reform. They aren’t wrong. Union contracts are one reason why police departments are so hard to change.

 

      The current reform debate hinges on the notion that reducing job protections for police officers from qualified immunity to state labor laws to union contractual provisions will allow police chiefs to dismiss bad cops and cause those who remain on the beat to be more circumspect and less likely to use excessive force. The hope is that police violence against citizens will fall and community trust in police will rise.

 

      Police unions, on the other hand, influence the structure and operations of police departments from the bottom up through collective bargaining and from the top down through political activity. The problem is that unionization and collective bargaining have made it extremely difficult to bring about meaningful reform of police departments. Pay and benefits are not the subject of today’s controversy. Rather, it’s the rules inscribed in collective bargaining contracts that are negotiated under the rubric of conditions of employment and established disciplinary, grievance, and arbitration procedures for officers accused of misconduct. The serious concern is that excessive job protections allow some officers, a small minority in many cases, to act with impunity and thus poison police-community relations.

 

      Although an understudied topic, the existing scholarly literature on the impact of police unions is nearly unanimous in finding that police unions have negative impacts on organizational modernization, accountability, officer use of force, and police-community relations. For instance, a 2006 Bureau of Justice statistics report found that officers in unionized police forces are more likely to be subjects of an excessive force complaint but are more likely to beat the allegations in disciplinary hearings.

 

      In a 2018 paper, scholars at the University of Chicago Law School found that in Florida, violent misconduct among sheriff’s officers increased about 40 percent after the state supreme court ruling allowed the officers to unionize. And in one recent  paper, still not peer reviewed, a group of economists found that after officers gained access to collective bargaining rights, there was a substantial increase in killing of civilians.

 

      Contractual provisions and state statutes that deal with officer discipline and misconduct come in three forms. The first details the steps required to investigate an officer accused of misconduct, sometimes specifying the way the complaint must be formally lodged. Such provisions stipulate when and where an officer can be interviewed, by whom, and with who present. Many contracts contain rights to appeal, rights to notice of charges, legal representation, a hearing, and a right to appeal, among others.

 

      Second, labor contracts allow or even require expunging of officer’s past disciplinary records or accusations of misconduct. For instance, my home state of New York, until very recently, a provision in state law called 50-A shielded officers’ records from the public. In Cleveland, the collective bargaining agreement required that disciplinary records be deleted every two years. Police chiefs cannot effectively manage their workforce if disciplinary records are regularly destroyed. Without records, a new police chief has little idea who they’re dealing with, and the lack of records means that chiefs often don’t know who they’re hiring when job seekers come from other police departments.

 

      Third, grievance and arbitration rules lay down how an individual officer or their union representative can challenge an adverse personnel action by a superior, such as reassignment, transfer, suspension, or firing. The use of arbitration itself can limit police accountability. Arbitrators have a strong incentive to be police friendly. If they discipline too many officers, they will not be selected in future arbitration cases. Arbitrators are empowered to order the reinstatement of back pay for officers found guilty of misconduct. A 2017 Washington Post investigation found that in Washington, D.C., 45 percent of officers fired for misconduct from 2006 to 2017 were rehired on appeal. In Philadelphia, the share is 62 percent. In San Antonio, it’s 70 percent.

 

      Other contractual provisions can also constrain police management. Union contracts usually require that officers be assigned duties based on seniority. Consequently, a police chief lacks the discretion to assign particular officers to particular areas of their city or town. Instead, what typically happens is the least experienced officers must patrol the most difficult neighborhoods during the times of day when most crimes are committed.

 

      To be sure, many of the protections demanded by police unions reflect the unique challenges of policing. Because of the nature of their work, law enforcement officers tend to have adversarial relationships with the citizens and communities they serve. False or exaggerated complaints are inevitable, and it is understandable that labor representatives want to protect their members against these threats.

 

      However, collective bargaining in the public safety sector strips government executives of the tools they need to supervise and manage their workforces effectively. Police chiefs struggle to weed out poor performers, and a few bad actors can undermine an entire organizational culture. Police are among the institutions of government with which Americans most frequently engage. Police protect our most vulnerable citizens and allow communities to thrive. There are thousands of heroic and dedicated police officers, but unionization and collective bargaining have enmeshed this crucial government function in red tape that too often protects the inept and abusive.

 

      I’ll turn it over to Larry for his perspective. Thank you.

 

Larry James:  Thank you very much. Thank you for the Society for having me. My name is Larry James. Let me give you a little bit of background. I served as Safety Director over police and fire for Columbus, Ohio, for three years. My entire life has been, after law school, involved with various aspects of police and public sector labor issues. I’ve prosecuted police officers for internal affairs. I’ve defended police officers. I’ve administrated police officers. I’ve terminated police officers. In another life, I was also General Counsel for the local NAACP, and I’m currently General Counsel for the Columbus Urban League.

 

      I think there are a lot of misnomers. And let me start with the easiest ones I think I can dispel. People say qualified immunity, and what that means. Qualified immunity does not mean that police officers cannot be terminated. It does not mean police officers cannot be disciplined. It doesn’t mean police officers cannot be criminally charged. The sole purpose of qualified immunity is to give immunity to public officials when they’ve acted in good faith and made a bad decision in civil litigation. So that issue is about money. I don't know how we got sideways on that.

 

      On the arbitration side of it, when you look at arbitration, what  you come to understand is any good labor lawyer in an arbitration proceeding, particularly in the public sector, does not take bad cases to arbitration. So the disproportionate numbers you see -- and I use Will Atchison who’s out of Seattle area, who, if you follow Will in his journey, he says, “In the 3,000 cases that I’ve had on various disciplinary matters, I’ve taken seven to arbitration.” The point is that probably less than ten percent of those cases that we see end up in binding arbitration.

 

      If you did a search of the decisions from the arbitrators, what they would say to you is that the reason those cases get reversed or officers get reinstated, management has failed to present that compelling case, or there’s a disparity in the discipline and discrimination in the discipline.

 

      And I’ll tell you a personal story as Safety Director when I started out. I happen to be African American. The first three officers that the upper management brought to me to termination were three black officers. And they were officers who had been very active in Police Officers for Equal Rights. I reversed those terminations. So I said to the rank and file and everyone, “If you’re going to get a bad cop, you’re going to get him or her the right way.”

 

      So if management does its job, it’s consistent, it’s fair and impartial, I think you find those charges sustained. The last thing police officers want to do is work with a bad cop. And the last thing a good lawyer in this area wants to do is defend a bad cop. But when that case comes to that lawyer and you’re looking at the disparity of the treatment and said why did this officer get ten days and you want to terminate those officers? So the hand is forced.

 

      Collective bargaining in arbitration -- let’s stay with arbitration. You’re looking at 60 percent of the American workforce in the private sector that mandates arbitration clauses. So the private sector, the public sector, anyone in that area decides that arbitration is better. Why is that? You’re looking at 261 days to 361 days on the average of adjudicating and finalizing a matter that goes to arbitration. The lawyers who are in litigation and stay for federal court understand that process takes probably two years to four years and probably ten times the cost.

 

      The other thing that the labor movement, I think, at least on early parts that it came into being, it did a couple things. It enhanced the middle class. Government and the public workforce, on the diversity side, we saw that those areas were just good for bringing people into the middle class. And I think that’s the other real benefit of collective bargaining that we have lost.

 

      I’ve been General Counsel for the National Fraternal Order of Police since 2001. And it doesn’t matter whether I’m talking to The Federalist Society, I’m talking to a room of police officers, or I’m talking to the black community. My message has always been the same. And I think once they understand what the role of arbitration is and its effect and what qualified immunity is and what collective bargaining is, they turn back to management because unions don’t hire. They don’t fire. They don’t discipline. They don’t promote. They don’t train.

 

      One of the questions I got on a Zoom call last week from school board members, they were talking about resource officers. And they were talking about the skills that they wanted to see in those school resource officers that they had contracted with the police department to provide police officers. I said, “Why are you asking me that question? That is your decision to make. You are management. You set the criteria. You determine what the admission level is, whether it’s education or otherwise.” So with that, I’ll stop.

 

Dean Reuter:  Very good. Thanks to both of you. Let’s open the floor right away to questions. Let’s turn to our audience for our first question of the day.

 

Pepper Crutcher:  Hi. This is Pepper Crutcher. I’m on the Labor and Employment Practice Group Executive Committee. And I’d like the opinion of both speakers on this question. What would be the consequences, in your view, of, by law, requiring that all disciplinary cases based on excessive force be resolved by jury trial rather than arbitration?

 

Larry James:  This is Larry James. You would never get anything done.

 

Prof. Daniel DiSalvo:  This is Dan DiSalvo. I tend to concur with Larry. I think a jury trial in all of such cases would probably be a very slow and difficult mode of proceeding. I think the bigger issue is really how to proceed in these excessive force cases. And you have so many layers of scrutiny that often times, it’s a little bit -- the bigger question is before you even get there, which is to say if you can -- management—and I agree with some of Larry’s remarks here—needs to take a stronger hand, and the blame should not be shifted entirely onto the unions. Management has a role to play here in doing a better job of weeding out bad officers.

 

      One study in Chicago shows that five percent of officers are accused of over a third of the civilian complaints. So really, it’s cold comfort to address the issue once a citizen has been killed or there has been a real use of excessive force that injured someone. Really, you need to address the problem earlier in the pipeline, and that’s where I think some of the excessive layers of protections in the contracts are the issue.

 

Larry James:  Larry James again. A couple observations. When we looked at Ferguson, we go back to that time and we, as a part of the FOP, we knew that our voice was not going to be heard. So we invited the Obama Justice Department to come in and do an in-depth study because we knew the officer was going to be cleared. And that is exactly what happened in Ferguson.

 

      If you had decided that you were going to take this to a jury or -- let me change this because what I just thought of. In many jurisdictions now, all police fatal shootings to the grand jury, so in a sense, you have that review process. But I think would be an abuse of process to say automatically that you’re going to take it to the jury because it’s just impractical.

 

      The other thing I would point out is in Minneapolis, when we look at that situation, my wife and a lot of my family members and community members ask the question, “Why did that officer seem so comfortable with his knee on that individual’s neck?” And the reason for that is that individual was a training officer, and that is a technique that he had taught. That regulation had been on the books for Minneapolis forever. It had a citizens’ review. And the officer did not see anything wrong with the technique that he uses.

 

      Now, I’m not justifying it. I thought it was a horrible example. But when you look at how you’re going to judge an officer, and then you indict an officer or you want to take an officer to a jury trial, you better be darn sure that the due process, the normal judiciary procedures are employed, for everyone’s sake.

 

Dean Reuter:  We’ve got three questions pending. I want to go to our next caller as soon as we can, but let me ask, is there, either of our guests—this is Dean, by the way—it seems to me part of the problem is you get an immediate outcry from the public. And maybe there’s some misinformation or disinformation.

 

      Are there problems with transparency here? Is it possible to get immediate statements out that are meaningful that can allay some of the concerns that there’s not going to be a review? It seems to me that the reviews are very routine and done properly, but maybe not quickly enough. Is that an issue, or is there some way to get around this immediate conflagration to settle things down a bit?

 

Larry James:  This is Larry James. Take the Atlanta situation, the shooting there. I think at the end of the day, that’s going to be determined that the officer was justified in that shooting. Now, what the mayor decided to do is to bypass any due process procedures, and transparency be damned. She fired the officer or had the officer fired on the spot.

 

      Public officials, when you have that sort of hue and cry, have to make a decision. Are you going to take immediate action and take the -- trample on the rights of the one versus having your city burned down or damaged? And I don’t have an answer for that. When you sit in those chairs and you have to make those decisions, it’s a horrible place to be.

 

Dean Reuter:  I think we’ve momentarily lost Professor DiSalvo. Professor, do we have you back?

 

Prof. Daniel DiSalvo:  Yes, I’m back.

 

Dean Reuter:  Okay. I’m not sure if you heard the last exchange. I had asked about transparency and means to reduce an immediate response, an immediate public outcry after an incident, if there’s anything to be done there.

 

Prof. Daniel DiSalvo:  I guess I’m sympathetic to Larry’s position, and I heard most of his statement. Barring a real intervention by mayors and other political elected officials, which I generally think is unwise and probably pre-judges the cases, it’s very hard to get something immediate or to have some kind of investigation that has been done before some statement is  made. And usually, the conflagrations here are occurring within 24 hours. It seems to me that the transparency -- there can be an assurance that an investigation will be done, but whether that’s going to really tame the anger of a given community in the sort term, that seems to me relatively unlikely.

 

Dean Reuter:  We’ve got three questions pending now, so let’s check in with our next caller. It looks like we’re headed to Texas.

 

Ed Heimlich:  Yes, this is Ed Heimlich in Austin, Texas. My question is for Professor DiSalvo. Larry James mentioned some of the history on unions. It does bring a lot of people into the middle class, and the reason was because when you can get a competitive market where you have employers competing to offer their services at a lower wage than the lower price of their competitors, they will seek to hold wages down. So in a competitive market, you need unions.

 

      But we no longer have unions in the private sector of our economy. They’ve been pretty much eradicated, especially in states like Texas where we have the right to work laws. The exception, though, is these public sector unions. Now, they have a monopoly, so there is no competitive downward pressure on wages. So why do they need a union other than to corrupt our political process by using the unions to get the people elected, including judges, who will let them violate the law? Professor DiSalvo, can you answer why would a public entity, when they have a monopoly on providing a service, need a union?

 

Prof. Daniel DiSalvo:  Well, I guess -- this is Dan DiSalvo from City College. Generally speaking, I’m sympathetic to your criticism. I think that in many cases, there is evidence that police in jurisdictions where there is collective bargaining do earn more in pay and benefits than in jurisdictions where there’s not.

 

      I think in the current environment, if the reform proposals, for example, that are on the table in Connecticut that would reduce the amount of job protections or eliminate collective bargaining over the terms and conditions of employment, meaning over disciplinary procedures and make police officers’ jobs less protected, you might have to do something more on the pay side. That’s going to be fairly costly. Who’s going to want to take the job of being a police officer if you don’t have fairly extensive job protections? There’s some justification for that.

 

      So in my view, I think that looking ahead at the reform proposals, perhaps we want to be pushing in a direction of a more professionalized police force that receives potentially higher pay or that restructures compensation away from very heavy pension and healthcare benefits and retirement and more into pay at the front end. In some ways, I could see police feeling very embattled in the current moment, and that’s going to be a problem for recruiting talented and serious officers. So that’s, I think, a big issue if we’re going to be constraining collective bargaining, which is -- I think there’s strong reasons to think that that needs to be done. Other reforms are going to need to come into place along with that. I’d be curious as to Larry’s perspective on this as well.

 

Larry James:  Well, I’m smiling because when you talk about public sector unions, the only one that really yields a lot of power on the purse string are probably your teachers. If you want to look at what’s in our political fund, our PAC, you’re going to be sadly disappointed because that influence by the way of money -- corporate America is the entity that really influences politicians.

 

      Before we got on the call today, a couple of minutes ago, I did an alert that the Speaker of the Ohio house of Representatives had been indicted along with a lot of the lobbyists who were representing the utility companies that had some initiatives on the thing. So I don't think that’s fair at all that public unions somehow corrupt locally, statewide, or nationally. I think that is the farthest thing from the truth.

 

      When you want to talk about the influence of judges, if you want to look at the employer-employee situation, at our U.S. Supreme Court in the last, say, 15 years, if you were to look at the cases of employment pending, you would find 90 percent plus were decided in the employer’s favor. I’ll stop there.

 

Dean Reuter:  Let’s check in with our next caller.

 

Bob Fitzpatrick:  Hi. This is Bob Fitzpatrick in D.C. I have two questions. I do not remember the name of the officer in Minnesota who put the knee on Mr. Floyd, but apparently he had long documented history of, quote, “wrongdoing,” and somehow, I guess, had sufficient job protections under the collective bargaining agreement that he survived to, as many have said, execute Mr. Floyd. So I’d be interested in what suggestions both of you have in this really toxic environment where, under the CBA, the collective bargaining agreement, one could modify protections to some middle ground where guys like him don’t continue to survive the charges of wrongdoing.

 

      And then secondly, and I think it’s kind of part and parcel of that, what suggestions do you gentlemen have in terms of amendments to a collective bargaining agreement that might start to change the culture of what is called “the thin blue line;” that is, cops won’t fink on other cops. And we can talk about changing cultures and bringing external people to give speeches and show them videos and all that stuff we did with sex harassment, but at the end of the day, I wonder if it’s the collective bargaining agreements that can have the real power to bring about change.

 

Larry James:  This is Larry James. I think the thing you have to keep in mind, this conversation is primarily focused on large city police departments. The majority of our police officers who work around the country work in much smaller departments. They’re substantially underpaid. Many of them are working second jobs. So let’s understand that we’re talking about big city departments for the sake of this. And we’re also talking about states that have collective bargaining and police officers’ bills of rights.

 

      I think the one thing that we probably could agree on is when we’re talking about the officer in Minnesota, you’d have to look at the 17 complaints to see what type of complaints they were, whether they were abuse, physical abuse, excessive force, or rudeness. What’s the nature of those?

 

      What we’re talking about in the labor contract, what you run into is a record retention policy and how an officer’s complaints that are in writing are going to be destroyed or removed from his or her personnel file. So that is a critical issue, and that is one of those issues that unions many times negotiate with management. So management has to take a firm stand to say that at least those complaints that would relate to excessive use of force are not going to be eliminated.

 

      So what I say to communities, take a look at what the record retention policy looks like. Is it one that, irrespective of the nature of the complaint, that in a year or two years or six months, whatever that time period, is going to be removed versus excessive force, and then you deal with progressive discipline?

 

      During the time I was Safety Director, I wanted to know those things. And I think if management is going to be consistent and fair -- what you will get from the union, they will tell you, “Director,” with a nod and a wink, “this guy is on his own. We’re not going to come to bat for him.” As hard as we are, a good officer -- that deserves a second chance.

 

      You have those outlier situations, and maybe Minneapolis is one. What we don’t know is the totality of those complaints, the length of time those complaints persisted. And I think we have to look at that to be objective and fair.

 

      When we look at police officers and we look at the number of encounters they have with the public -- let’s assume there’s a million encounters and you’re in a hotbed area where it’s crime infested, and it’s not the easiest area to patrol. And that officer is making X number of arrests a year. You can imagine that that the complaints are going to go up. You can also imagine that the increased probability that something’s going to go wrong.

 

      And so when you’re looking at those type of statistics, you ask yourself if you’re talking about two percent or 200 officers out of a million, in a two year period of time that you’re going to have these flashpoints, how are we going to view the overall performance of the police officers? So that’s what I would challenge you and push back on to ask those more in-depth questions and study the problems a little bit harder.

 

Dean Reuter:  Professor DiSalvo, anything on this? And this is Dean, by the way. Let me add, it seems that prospectively, that is, going forward, the meaningfulness of a complaint might change because right now in this era of heightened scrutiny, it seems to me that we’re more likely to get complaints than ever. But Professor DiSalvo…

 

Prof. Daniel DiSalvo:  Yeah, I have thoughts on this excellent question. In some ways, I agree with Larry. I might go a little bit further. I think in some jurisdictions, even how complaints can be brought, whether you can allow anonymous civilian complaints or not. Some people are afraid to come forward if they don’t. In some jurisdictions, there are no anonymous complaints. You have to sign an affidavit which then makes your name public. So how complaints could be brought.

 

      I think greater transparency here is not necessarily about opening up an officer’s personnel file to the public, but to management so they can make the kind of discretionary choices that need to be made and look at the totality of an officer’s record over an extended period and say, “We’re getting too many complaints on this given officer. We need to rethink about who this officer is partnered with when he or she is on patrol.” And in that respect, I think really the maintenance of records and not destroying them.

 

      And so in that sense, I would go maybe a little further than Larry and say not just the excessive force complaints should be kept and everything else can be shredded. But I think the totality of the officer’s performance over time needs to be looked at, and that gives management an extra tool to see who they have. And of course, as management changes, they can then have a historical record. And I think if we get out from the details of the collective bargaining, make agreements about how complaints can be lodged, and then whether the records should be kept, is really to think about what’s the police force that we want going forward?

 

      I think perhaps a helpful analogy to think about is the U.S. Army after the Vietnam War when we switched to an all-volunteer force. And in some sense, there was a tradeoff that has worked out well, I think, for the United States, which has been really demand high performance but not offer nearly as many job protections, and really have really high standards but also compensate people well. And that might be a model that people might want to study in this context, which is to demand, in a sense, higher performance but compensate people better and in a sense try to improve the overall human capital of the police departments going forward. And perhaps that’s the longer term push in a direction that might be helpful.

 

Larry James:  This is Larry James again. I think the other thing when we talk about training and meaningful training, if we look at the departments, almost universally speaking, that the first thing to go in the budget is training and meaningful training that’s going to have the officers better equipped to deal with certain situations. And you just saw this as we dealt with all the riots and whether those officers were equipped and trained to really respond to that sort of monitoring, if you will, without retaliating or reaching out.

 

      One of the issues I had when I was Safety Director, we had an officer who would say, “Hello,” and he would use mace on the individuals. And I said, “What’s going on here?” And they said, to the Professor’s point, “The use of mace was not characterized as a use of force.” I said, “Well, then we will start characterizing it as a use of force, and if you have this many complaints within this period of time, then you need to go back and retrain.”

 

      But again, I think as you look at a police department and understand it, how it works, how it functions, how discipline works, how training works, it all matters. And those are the things that are going to make a difference. I’ll stop there.

 

Dean Reuter:  We’ve got three questions pending, so the line grows, but we’re working through them.

 

Don Huddler:  Thank you, Dean. It’s Don Huddler in Philadelphia. Clark Neily, who’s currently at the Cato Institute, has been advocating for some years that it might be a good idea for police officers to carry private liability insurance with the idea being that the private sector knows how to spread risks and allocate costs.

 

      And furthermore, he thinks that, just as in many other professions, that if police officers had to carry insurance, the worst offenders, the minority among any particular force would quickly be identified and charged higher rates. And if they didn’t reform their actions, then they would eventually become uninsurable and therefore unemployable.

 

I think as outsiders to law enforcement, that seems like a really interesting system and a potential reform. I’m curious what both Professor DiSalvo and Mr. James think about that.

 

Larry James:  I’ll defer to you, Professor.

 

Prof. Daniel DiSalvo:  Well, thank you, Larry. It’s Dan DiSalvo, City College. I think it’s an excellent question, and it’s a provocative suggestion and an interesting way to introduce a market mechanism into policing.

 

      I would say I have a little bit of skepticism, and this goes back to something that Larry touched on earlier, which is when it comes -- sometimes, the cases for police officers when they have more contacts with civilians over a long time in big cities in tough neighborhoods, it can also be that some of the complaints for certain things are because the officer is a truly, really effective officer who gets in there and does their job an breaks up fights and deals with difficult domestic violence situations and then gets back in their squad car.

 

      So I wonder -- again, this would all hinge on what the underlying data that is going to be used by private insurers to deal with this policy and how that’s going to ratchet up and whether you would end up with a situation that might target some fairly effective officers. That would be my concern with that policy model.

 

Larry James:  Larry James. So if you look at our profession and legal malpractice, and if you’ve had a claim in your firm, because I also represent a lot of lawyers in various disciplinary cases, and you watch the skyrocketing costs of insurance with one incident, it will immediately eliminate the market for police officers.

 

      We currently have in some jurisdictions in townships, in consortiums where they go out and they have to go to market because their tax base will not afford them the ability to defend lawsuits going forward. And one you have one claim in one department, it isn’t officer specific, because you’re probably try to group it if you try that at all, that’s just impractical and would be impossible and would require the officers to make a ton of money, and taxpayers and the public is not prepared to do. And I would just say look at what malpractice insurances cost both in the medical profession and in the legal profession as a mirror.

 

Prof. Daniel DiSalvo:  I guess I would add one more point here, which is not exactly directly related to the question but I think is a relevant and important one in the current context, which is what you don’t want to create are too many incentives for officers not to be proactive; that is, the good officers who can really go out protect and serve communities. The problem is as we can see from current realities in Baltimore and many other cities in the United States is when police officers withdraw and pull back, crime can go up, and that can hurt a lot of communities.

 

      So in some sense, it’s a delicate balance; that is, we don’t want to reduce too many protections for officers so they feel like they can’t take sufficient risk on the job. And that’s going to be the delicate balance. And this insurance proposal that you mentioned sort of speaks to that same idea.

 

Larry James:  This is Larry again.

 

Dean Reuter:  Go ahead, Larry.

 

Larry James:  I would also say this when you’re looking at what the Professor said is for officers to go out and do their job, and the question is how the administration will facilitate that. During the tenure as Safety Director, we had an issue in a predominantly black community where I wanted the officers to go out and saturate the community to give the community back to the seniors and the children because they just couldn’t go out and enjoy their neighborhood.

 

      And I went to our command staff, and I said, “Look, folks, I would like to do this.” And they said, “Director, that’s a bad idea. We’re not welcome. We’re not liked. And it’s just going to create friction, and they’re going to be a ton of complaints. I just don’t want it.” And so I asked him, I said, “What would it take?” They said, “We have to be invited in.” So I went to the Nation of Islam, the leadership, Brother Donell Muhammed, who I’ve known a number of years. And I said to him, “Brother Donell, I need you to hold a press conference. I need you to invite the police in. I need you to support the police.” And that’s exactly what we did, and we saturated it.

 

      So I think that these issues of makeshift solutions, whether it’s private insurance or civilian review boards, which we have over 150 around the country. Minneapolis has one. They had a budget of a million dollars. And none of those have been effective. I would challenge and say that the primary failure in law enforcement has been management.

 

Dean Reuter:  Well, this is Dean. I have a question related to that. And we’ve talked about some creative ideas here, and then I’ve heard a couple times about police officers, line officers using methods and processes that had been endorsed by management or by the -- I don't know if they’re endorsed by the union or not, but is it a defense for a line officer if he’s following protocol, if he’s following procedure like the use of mace as a non-use of force or like a neck on the knee, how much of that is a defense, and how much of a defense should it be if somebody’s operating within a regime that has some outmoded or outdated standards?

 

Larry James:  This is Larry James. Absolutely. So the issue in the defense is always, “I was trained with this technique. I’ve followed it. No one told me it was wrong. No one told me it was incorrect.” And there, the liability shifts to the government entity whose policy may have been to train that. And then you’re going to bring in your expert witnesses to say is that the best practice, or is that the best standard?

 

      So always, when you see a lot of these cases where, like in Baltimore, where these individuals were indicted and went to trial, and all of them got exonerated. There were not guilty pleas. And we see those more often than not. And you ask yourself why is that? So the officer is going to take the stand, and they’re going to bring in the chain of command on cross, and they’re going to ask, “Was this the policy. Was it in place? Did you train to this policy, and did the officers comply with that?” So, absolutely.

 

      I’m not saying it’s right. But in Minneapolis, that situation is going to be on trial, then management is going to have to be the one that should be on trial. And the question is do you indict management or higher up, and as a result of that, like you would do in a corporate world if you’ve retained a bad employee, then that liability vests or spills over into the corporate entity.

 

Dean Reuter:  Professor DiSalvo?

 

Prof. Daniel DiSalvo:  I guess, yeah, my thought here is a little bit broader gauged. And that is that in some ways, I think the bigger concern here, when we look at all the police union contracts and all the different levels of appeals and all of the investigatory processes, is that in some sense, the idea of due process has become distorted by unionization and collective bargaining. And due process -- again, I am not an attorney. I’m a Ph.D. professor, so all of the lawyers can perhaps take me apart on this, but in my humble understanding, it was always an idea that was to protect citizens against abuses of power by the state, not necessarily to protect police when they abuse their power. And in that sense, due process has taken on this sort of magical word and this extensive set of procedures that make, really, actions so slow and difficult in that sense and really ties managements’ hands in significant ways.

 

      So while I would like in some sense, management to have freer hands, they need to be able to take action not only at the point when something really tragic and terrible has happened, as we saw in, say, the Minneapolis case. The police chief did the right thing and he fired the officers right away. But that’s cold comfort coming at the end of something terrible happening.

 

Larry James:  This is Larry again. I think the problem you have is equal accountability. If you are a first year officer, as -- one of those officers in Minneapolis had been on the job for four days. He’s on site. He’s got a superior officer who is part of the training academy, and that officer asked his superior, “Maybe you should let him sit up. Maybe you should do this.” He basically tells him to shut up. Now, that officer who had been on the force for four days would understand that is a proper technique. He may have disagreed with it and voiced his concern. He is fired and he is indicted. I’ll stop there.

 

Dean Reuter:  One quick factual question from me, and then we’ll go on to two remaining questions in our audience. Do we know what percentage of law enforcement officers are operating under a union or under a collective bargaining agreement?

 

Prof. Daniel DiSalvo:  This is Dan DiSalvo from City College. It’s hard to know the exact numbers in the police context. I can give you some of those if you just bear with me for one second, partly because police -- so according to the Bureau of Labor statistics, about 57 percent of the nation’s 712,000 police officers are covered by collective bargaining contracts, and about 55 percent of police officers are union members. Now, that’s the Bureau of Labor statistics data.

 

      If you actually look at what the numbers of union members reported by organized labor, AFL, CIO, FCIU, Fraternal Order of Police, you actually end up, oddly enough, with more union members that there are police officers in the country. So it’s a little bit hard to get a handle on the data. The reason is that individual officers and locals can affiliate with multiple larger federations, which is not possible in the private sector union context, and most other public sector unions don’t do that.

 

      The other factual point that’d probably be worth stating is that police only enjoy collective bargaining rights in 41 states. So Georgia, North Carolina, South Carolina, Tennessee, and Virginia prohibit collective bargaining for all public employees. And then Alabama, Colorado, Mississippi, and Wyoming don’t have statutes either to encourage or oppose police unions.

 

Dean Reuter:  Larry James, anything on this, or should we move on?

 

Larry James:  Please move on, yes.

 

Dean Reuter:  Two questions pending. We’ve got almost ten minutes left. I think we can get both of these in.

 

Robert Efroymson:  Hi. My name is Robert Efroymson. I’m in Santa Fe, New Mexico. And pardon me, I came in a little late. But coming into this conversation, I was reading Reason magazine and other places, I think Cato Institute as well, and thinking that we really do need to rein in the unions. And then it was mentioned in one of the earlier questions, the situation in Atlanta where apparently there are no unions and the officer was fired almost immediately for conduct that a lot of people think will probably be proven to have been justifiable.

 

      And to me, that was a problem not just for that officer but for the whole notion of reform by getting rid of -- or by restraining union power because the argument the unions have is, “Look, the police need us to protect them from precisely that sort of political interference with their jobs where there’s a howling mob, and then the local politicians just throw the police officers under the bus.” So I saw that as kind of concerning, and I don’t -- I guess that’s my question. I don’t have an answer to it. I was just wondering whether you saw the same tension at play there. Thank you.

 

Larry James:  This is Larry. The question when you look across the United States and the number of labor agreements, where we see the major confrontation is in the major urban areas, New York, L.A., Chicago, Atlanta, Columbus, and so forth. I think unions, I think union contracts, I think arbitration has been a good tool. I think overall there has not been an abuse to that.

 

      Where the lines get blurred is when government entities are lacking money, and they decide that their tradeoff is some of managements’ rights, whether that’s records retention, whether that’s the number of officers that are going to be assigned. And so I would urge everyone to create this divide and look at those issues where management has given up those rights. And again, we’re not talking about firing, hiring, discipline, termination, promotion, or training. The unions have no say-so in those areas. So I’ll stop there.

 

Dean Reuter:  Professor DiSalvo?

 

Prof. Daniel DiSalvo:  Yeah, I would just say that the caller’s question is an excellent one. And certainly there’s an inherent tradeoff here in you can increase union strength and increase the number of job protections that are involved in any contract. Now, the trick is that those are going to protect good officers and bad. And they end up protecting officers when they really need it, and that’s certainly the justification and the argument for allowing CB and unionization in the public safety sector.

 

      The trouble is when all of these provisions become really a drain and make it impossible for management to feel like it can weed out poor performing officers without having to go through a really extensive and laborious process. Even if you think about supervisors, given the grievance procedures enshrined in so many contracts, many superior officers won’t take any adverse personnel action against a junior officer that they’re supervising because they can be nearly certain that a grievance will be filed. They’ll have to deal with tons of paperwork, and it just becomes a huge hassle. So in that sense, it has a chilling effect, and I think that’s the sort of thing that I think leads to this kind of organizational sclerosis.

 

Larry James:  Larry James again. I would say to you, having sat in 360 on police operations, I have never seen a situation in my history where that has been true that officers are not written up because I’ll tell you, the number of cases that reached my desk of serious infractions were plenty. I would say to you out of every 100 cases, I probably sustained 85 percent of them.

 

      And I think if you look at and you dig deeply, you will find, as I said earlier, that few of these cases go to arbitration because if you’re a labor lawyer and you’re representing these folks, you don’t want to create bad precedent. And so you walk away, and you say, “We’re not going to take that grievance forward.” I’ll stop there.

 

Dean Reuter:  Let’s see if we can get to this final caller. Go right ahead, caller.

 

Ed Heimlich:  Yeah, this is Ed again in Texas. My question concerns -- it’s for both. It concerns privatization of police functions. Can you hear me?

 

Larry James:  Yes.

 

Prof. Daniel DiSalvo:  Yes.

 

Ed Heimlich:  Much of what the police do could be done by private services and currently is by those who contract with guard or patrol services. And I think that if neighborhoods and maybe even entire cities privatized at least some of their functions that that could cure a lot of problems.

 

      But the union contracts, they write in there that -- they get a law passed that says that there has to be a police officer making $80,000—well, actually, with benefits, $100,000 a year—a city over at -- any place that there’s some road construction going on. And they just sit there all day. That could easily be contracted out to a privately owned entity for a fraction of the cost. Any comments on that?

 

Larry James:  Yeah, this is Larry James. The only area you’re going to see that happen is in your more affluent neighborhoods where your problems are much fewer. Your skillsets, your training, is -- you’re not going to need as much of it. Realistically, that’s just not going to happen. I’ll stop there.

 

Prof. Daniel DiSalvo:  This is Dan DiSalvo with City College. I agree with Larry on the practical unlikelihood of that occurring. And I guess for my own part, I also disagree with it in principal insofar as police officers are given the authority to use force on behalf of the state. I think that’s a role better left in the hands of somebody who is a public employee.

 

      I think one way that the caller’s question might go in the current debate is police are asked to do an enormous amount of things in a lot of our big cities today. I’m from New York. They’re dealing with a lot of the mental health issues and homelessness policies. It may be that some of these things need to be taken of the plate of the police and given to other groups that need to develop and be able to deal with some of those issues and not just put every problem back onto the police.

 

Larry James:  This is Larry James. Ditto on that because that’s what defunding the police should be about, a reallocation of resources. As I talked earlier about school resource officers, if you want individuals with a certain skill set as opposed to discipline enforcement, you will go down that path. Thank you.

 

Dean Reuter:  Well, gentlemen, thank you. This is Dean Reuter. I’m afraid we’re going to have to leave it right there. My thanks to Larry James and to Professor Daniel DiSalvo. We certainly appreciate your time and your insights here. My thanks also to the audience for dialing in and for your thoughtful questions. A reminder to check our website, check your emails for notices of upcoming teleforum conference calls, but until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.