Rights and Wrongs

Frustrated by the inability to bring justice to clear examples of police misconduct caught on video, the public would do well to take a look at their state’s police officers’ “bill of rights,” which their local law enforcement unions have successfully lobbied to implement and expand.

Typically, according to Cato Institute research, when a complaint is filed against an officer, department leadership decides whether to investigate. If it does, it must inform the officer and his union representative, whereupon the following protections that most people do not have are in place:

The officer involved gets a “cooling off” period before answering any questions, something not afforded to average citizens. Another extra-special right not provided to average citizens is before being interrogated the officer under suspicion is allowed to know the names of the people complaining against him or her.

And there’s more. “Unlike a member of the public, the officer under investigation is to be interrogated ‘at a reasonable hour,’ with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only ‘for reasonable periods,’ which ‘shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.’ Unlike a member of the public, the officer under investigation cannot be ‘threatened with disciplinary action’ at any point during his interrogation,” continues the report by Cato’s Walter Olson, quoting from an October 2012 story published by Reason magazine called “Why Firing a Bad Cop Is Damn Near Impossible.”

Nothing that the officer says can be used against him or her if he or she is threatened with being punishment for a perceived misdeed, Olson found. And if any of their basic and professional rights are violated, all charges against them could be dismissed. Because there is no federal officer bill of rights, what happens after an interrogation of an officer under suspicion of committing a crime varies from state to state, but in every state the process is shrouded in secrecy.

A fearful public must turn to reluctant lawmakers to add balance and common sense to the Police Officer’s Bill of Rights

Under nearly every law enforcement bill of rights, the Libertarian think tank concluded, “the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by ‘non-government agents,’ which means no civilian review boards. If the officer is suspended as a result of the investigation, he or she must continue to receive full pay and benefits until his or her case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.”

Historian Linda Gordon explores the present-day corruption of the function of police unions that she maintains “… operate more like criminal syndicates. They not only resist external oversight but enforce collusion with their corruption among their members.”

Historically, police organizations in the 19th century were used to bust up labor protests. In more recent times, Gordon states, quoting the work of criminologist Samuel Walker, professor emeritus of criminal justice at the University of Nebraska at Omaha, who believes police unions have gained strength in responding violently to civil rights protests. As police misbehave, their unions, in essence, function as defenders of their misbehavior, Walker states.

“Because their official understanding of their job is stopping criminals, they begin to understand anyone they engage with as a criminal,” Gordon concludes. “Since their work is separate from judicial processes, nothing remains to remind them of the presumption of innocence. They are accountable only to a chain of command in which the union officers often sit at the top.”

While law enforcement groups argue that these statutes protect public servants in a dangerous profession, critics have long contended that these types of restrictions only further fuel a heightening distrust of police.

In a story published last year, the Modesto Bee found that the state police officer’s bill of rights, signed into law in 1978 by Gov. Jerry Brown in his first term as the state’s chief executive, has some of the country’s tightest restrictions on law-enforcement records. “More than 35 years later, the 1978 law is part of a nearly impenetrable barrier restricting public access to law enforcement disciplinary records and civilian complaints in California,” the Bee’s Jim Miller reports.

“[O]pen-records advocates say California residents today have some of the least access to law enforcement records of anywhere in the country,” Miller writes. “Bills to tighten the restrictions, pushed by politically influential law enforcement unions, routinely sail through the Legislature. Attempts to provide more disclosure have been few and unsuccessful.”

kris-2The solution is as obvious as it will be difficult to apply. Clearly, the United States — not each state — needs to build a system that provides officers with some protections, but not at the expense of holding some of those officers legally accountable for violating people’s basic civil and human rights. The challenge will be loosening the gangster-like grip police unions have on department administrators and lawmakers at every level of government.

Kris Ockershauser

Republished with permission from the Pasadena Weekly

Comments

  1. says

    The recent L.A. Police Commission decision regarding handling of the police bodycam videos illustrates Kris Ockershauser’s article well:

    Officers involved in an incident will be able to view videos of the incident even before they file reports. Whether that is wise or not I leave to others to discuss. What stands out for me is Chief Beck’s explanation of the benefit of that policy combined with the Commission’s decision to deny viewing of the video by the public, presumably including members of the public who were involved in the incident: The Chief said viewing the video will help the officers “get at the truth” when making their reports. This is a laudable goal. What makes the Commission not apply the same principle to the interviews and reports with members of the public who were involved in an incident? Would the Commission be interested in helping them “get at the truth” in their reports as well? Apparently not.

    A second illustration from the story of the same decision: The L.A. Times reported (April 27th) that the Commission said it had heard from the public and interested organizations over months of receiving comment, meetings, and via a website. This contrasts with the conditions for input from police, “The department also had to conduct months of closed-door negotiations with the union that represents rank-and-file officers.” (L.A. Times, April 27).

    “Closed door?” Labor contract negotiations are typically “closed door.” But this was not contract negotiation, nor was any resulting agreement presented to the City Council for approval and to the public, as agreements produced in contract negotiations are.

    Maybe police and their union believe they are helping officers by providing for inequality of information and secret discussions. I believe the opposite is true. The difficult job of policing a grossly unequal society and enforcing laws with draconian sentencing and scant effective right to trial is tough enough without adding more inequality and suspicion.

    The police union, the Department, and the Commission have turned what could be a step towards informed dialogue and openness into a “bodycam” video showing how mistrust grows.

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