Since the death of George Floyd sparked a wave of national protests, at least 42 of the 50 largest U.S. cities have adopted new rules aimed at curbing abuses by the police, according to a tally by Samuel Walker, an expert on police accountability who is affiliated with the University of Nebraska Omaha.
From May through August, 15 cities banned choke holds. A dozen passed “duty-to-intervene” statutes, requiring police officers to act if they see a fellow officer endanger a civilian. Still others banned so-called no-knock warrants or changed policies related to the use of force.
Those reforms are important in and of themselves, and they also serve as a reminder of the power of collective action to influence new policies. Yet this list’s potential to create real change will be seriously limited unless city leaders and state lawmakers take on an entrenched barrier to reform: labor arbitrators. These are the men and women who routinely reinstate abusive officers who have been fired for misconduct.
Labor arbitrators have ordered police chiefs to rehire officers fired for deeds as outrageous as sexually assaulting a teenager in a patrol car, driving the getaway car in a murder and fatally shooting an unarmed driver, according to a 2017 investigation by The Washington Post.
Cases like these have a corrosive effect on society, serving as proof to many Americans that the current system cannot be reformed. These cases also demoralize mayors and police chiefs who have worked hard to remove problem officers, only to face orders from unelected arbitrators to give those abusive officers their badges and guns back. It doesn’t matter how much a police department overhauls its use-of-force policy or how strictly a police chief enforces those new rules if unelected arbitrators reverse the punishments.
Independent reporting for Pine Bluff & Jefferson County since 1879.
Orders to rehire are far too common. One study of 624 arbitration awards by Stephen Rushin, a law professor at Loyola University Chicago, found that arbitrators forced departments to rehire officers 46% of the time, frequently with back pay.
The reasoning used to justify such decisions often rests on the notion that punishments are only fair if they are applied equally across time, a concept in labor law referred to as “past precedent.” It has been standard practice for more than half a century to defend employees who are treated more harshly than others who had committed similar offenses in the past. In 1964, when labor arbitrator Carroll Daugherty included equal treatment to determine whether a punishment was just, it was the gold standard of fairness.
This practice should end. While police officers deserve due process and protection from arbitrary disciplinary action, it is far more important that abusive or dishonest officers be removed than that they receive equal treatment. Police officers carry guns and have the ability to deprive members of the public of life and liberty. A labor arbitration process that prioritizes the rights of individual officers over the community’s right to freedom from abusive police officers demands reform.
Curbing the power of these arbitrators won’t be easy. Some states have labor laws that guarantee arbitration to public service employees. Others have a Law Enforcement Officers Bill of Rights that guarantees a right to arbitration if an officer chooses it.
But perhaps the biggest victories that protesters achieved this summer were related to campaigns that pressured state lawmakers and city officials to chip away at this long-standing problem. Officials across the country are vowing to try to limit the right to arbitration, though efforts to do so are bound to be stymied by powerful police unions.
Much more needs to be done to rein in the power of labor arbitrators, but at least it is a start. Cities that are interested in taking this on could look at municipalities in California, like Burbank and Cathedral City, that have hybrid systems where arbitration decisions are nonbinding. Officers still have the right to argue their cases before a neutral body, but the ultimate decision to terminate an officer is left in the hands of the city manager, who is accountable to the community. That’s where it belongs.