Trump’s ‘Law and Order’ Blind Spot

Yes, America has a problem with racism and violence. But police unions need fixing first.

BATON ROUGE, LA -JULY 08:  Protesters face off with Baton Rouge police in riot gear across the street from the police department on July 8, 2016 in Baton Rouge, Louisiana. Alton Sterling was shot by a police officer in front of the Triple S Food Mart in Baton Rouge on July 5th, leading the Department of Justice to open a civil rights investigation. (Photo by Mark Wallheiser/Getty Images)
BATON ROUGE, LA -JULY 08: Protesters face off with Baton Rouge police in riot gear across the street from the police department on July 8, 2016 in Baton Rouge, Louisiana. Alton Sterling was shot by a police officer in front of the Triple S Food Mart in Baton Rouge on July 5th, leading the Department of Justice to open a civil rights investigation. (Photo by Mark Wallheiser/Getty Images)

In a national presidential campaign of international significance, America’s police officers have somehow come to occupy center stage. Both major parties seem convinced, and the country seems to agree, that the United States faces a national police crisis, one that traces back to the shooting two years ago of Michael Brown, an unarmed African-American teenager, in Ferguson, Missouri. Since then, there has been a steady stream of fatal police shootings, with each incident prompting angry protests — and, at least on two occasions, that anger has boiled over into the assassination of police officers.

Republican presidential nominee Donald Trump has now declared himself the “law and order” candidate. By contrast, presumptive Democratic nominee Hillary Clinton has scheduled family members of people shot and killed by the police to speak at the Democratic National Convention next week. But neither candidate seems to appreciate the ways in which America’s police crisis has uniquely American causes, including a tragic history of race relations and vast bureaucratic decentralization. (The United States has 15,388 city and county law enforcement agencies, which bear primary responsibility for policing communities, with no common central authority able to initiate reforms.)

But what truly makes U.S. policing an international outlier is a problem that almost always escapes scrutiny. Unlike most other countries in the world, America’s local police departments are heavily unionized, and local police union contracts include an array of provisions that impede officer accountability and serve to sustain misconduct. Absent the actions of police unions, it’s unlikely there would be a police crisis for the country to be so consumed by in the first place.

Consider Chicago, which has been in political turmoil since November 2015 when a police video, released only because of a court order, clearly showed a city police officer shooting 17-year-old Laquan McDonald in the back as he was running away, killing him. It’s only fair to be outraged by the shooting. But Americans should also be outraged by what happened next.

Soon after the Oct. 20, 2014, shooting, the police union spokesman, Pat Camden, arrived on the scene and issued an official union statement: The suspect lunged at the officer with a knife, leaving him with no choice but to shoot. The statement was a lie. Then it got worse. The other officers who had witnessed the shooting completed their required incident report. They all said the same thing: The suspect lunged at the officer with a knife. The officers knew they were lying because they had all been witnesses to the shooting.

In short, the union spokesman not only issued a lie on his own behalf, but orchestrated a conspiracy to obstruct justice and the investigation of a homicide.

The incident just described is exceptional only for its brazenness. Day in and day out, all across the country, police unions shield officers guilty (or merely suspected) of misconduct from being investigated and, where appropriate, from being disciplined.

The way out of the current police crisis includes, above all else, holding police officers strictly accountable for their actions. And that requires removing, or at least significantly modifying, union contract provisions that are almost unknown to most Americans. (The activist group Black Lives Matter, through its project Check the Police, has compiled the first-ever database on various police union contract provisions across the country.)

In Baltimore, Maryland, a police officer suspected of misconduct (a shooting, a beating, a false arrest) does not have to answer questions about the incident for 10 days. Ten days. It’s difficult to imagine any other line of employment where employees would enjoy such protection.

More common are the 48-hour waiting periods before an officer involved in, say, a use-of-force incident has to answer any questions. In Chicago, “[t]he interview shall be postponed for a reasonable time,” but no longer than 48 hours. Detroit officers get 48 hours even after being ordered to make a written statement. Do employees in any other job or profession get such a luxury?

What do those waiting periods do? They give officers time to put together a story to justify their use of force. They can ask their friends how they explained a similar kind of situation. And, as with the incident in Chicago, officers can conspire to concoct an exculpatory lie, often with a union official taking the lead.

Waiting periods are not all. Some union contracts put strict time limits on disciplinary actions. In Indianapolis, a recommendation for discipline must be made “not later than sixty days after the time the Department learns of the occurrence.” In a complex shooting or use-of-physical-force incident, where more than one officer is involved, and with several witness officers and citizen witnesses, investigations are often not completed for five or six months.

And even when officers are disciplined, many union contracts afford them the opportunity to purge the record from their personnel file. In Baton Rouge, Louisiana, a sustained citizen complaint “will be purged after 18 months,” as long as the officer has no other complaints in that period. Incredibly, in Cleveland, Ohio, all “[v]erbal disciplinary warnings and disciplinary written reprimands shall be removed” from an officer’s file “after six (6) months.”

In Omaha, Nebraska, “[a]n employee may request that any reprimand that is greater than one year old be removed from his personnel file.” What other employees in this country have any such opportunity?

In short, across the country, police officers get to wipe their disciplinary records clean.

Even when disciplinary actions remain in an officer’s file, in some departments they are no barrier to promotion or assignment to a choice position (as a detective, for example). In San Diego, formal reprimands that are 2 years old, and where there are no further disciplinary actions in that period, “will not be considered for purposes of promotion, transfer [or] special assignments.”

Do other employers accept promoting to supervisory positions people with a past history of disciplinary actions? Is a newly promoted police sergeant likely to command the respect of the officers under his or her responsibility when they all know about his or her dubious conduct record?

Beyond the specific protections in the various provisions cited here, they have serious cumulative effect, creating a culture of impunity within a police department. It’s a culture that says officers do not have to be held accountable for their actions, a culture that tolerates and even breeds patterns of excessive use of force, of verbal disrespect of citizens on the street, and contempt for basic standards of professionalism.

How, you ask, did the United States ever allow this to happen?

The sad truth is that, for the last 50 years, American police union contract negotiations have occurred in the shadows, with almost no sunlight and public scrutiny. And at the heart of the problem is a corrupt relationship between union officials and city mayors. A recent article in the Chicago Tribune documented the standard trade-off. Union negotiators begin with high demands on salaries and benefits and then offer to trade lower demands for concessions on disciplinary matters. City negotiators are all too eager to save their budget in return for management issues within police departments whose consequences they do not understand.

But, in fact, the consequences of management and disciplinary problems among police officers are very real and very damaging for all citizens. The protections won by police unions allow bad officers to remain on the job, allow misconduct to continue unpunished and uncorrected, and have allowed the current culture of impunity to grow and impede the development of true police professionalism.

It’s also important for Americans to understand that their country’s police crisis isn’t simply a domestic issue. It also has international consequences. The unjustified shootings that have occurred, and the angry protests that have followed, severely tarnish America’s reputation around the world. Thoughtful Americans in the 1950s and 1960s worried that the dramatic events in Birmingham and Selma, Alabama, told the world that this country had not honored the promises of equality embodied in the Declaration of Independence and the Bill of Rights. To many people around the world, America’s efforts on behalf of human rights are similarly undermined by its policing crisis at home and the racial issues bound up with it.

Donald Trump isn’t wrong to say that this has become a “law and order” election. But addressing the problems of police union contracts — especially the provisions that impede accountability — is what a true “law and order” candidate would insist upon.

Photo credit: Mark Wallheiser/Getty Images

Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha.
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