Saturday, October 14, 2017

Police union criticisms warranted, but suggestions off base

While Grits remains sympathetic to activists like Paul Butler who're frustrated at the ability of police unions like the Federation of Police to thwart accountability reforms, I don't find his proposed solutions particularly viable or useful.

Because labor unions are associations of free individuals under the First Amendment, I consider Butler's suggestion that "Congress as well as state and local lawmakers should convene hearings" to investigate them over political disagreements reprehensible. One mustn't adopt McCarthyite tactics just because one's opponent behaves reprehensibly. Those 1A rules protect all of us.

And while I'm not averse to the notion that "civil rights organizations like the NAACP and the ACLU should target the FOP as a barrier to police accountability," that's a tactical, situational decision, not a general principle. Plus, it's unclear what he means by "targeting" them. For criticism? Who cares? For disbandment? Not realistic. So to what end are they being targeted? Only after answering that question can one tell if it's a good idea.

There are portions of Butler's column in which it appears he makes no distinction between unions and other law enforcement actors. For example:
Some might believe that the FOP’s behavior and agenda are functions of its role as an organization that advocates for police, but the example of other police organizations suggests that’s not the case. 
The Major Cities Police Chief’s organization supported the Obama policing commission’s recommendations while the FOP advisory included "de-prioritizing" "some or all" of them. The FOP is known for defending just about any officer involved in the high-profile killing of a black man while the leadership of NOBLE, the National Organization of Black Law Enforcement Executives, continually calls for police reform in response to such events.
Butler appears to not understand in this passage the differences between the vested interests of police unions and management, conflating them to make the FOP look more like an outlier than they are. Compared to Texas' big police unions, FOP's stances are pretty typical.

One of the anomalies of 21st century police accountability activism is that it requires what has mostly been a movement based out of the Left to advocate against police unions on behalf of management interests, primarily because police managers are the only people empowered to discipline or fire bad officers. So it's not surprising that the management interests Butler cited embrace views more amenable to reformers. Advocates who are more sensitive to these dynamics than Prof. Butler may discover allies to help marginalize the FOP and other police unions that are pushing regressive policy agendas. At a minimum, that's a more realistic goal than simply declaring "the FOP must go."

Butler's last recommendation revealed the former federal prosecutor to be a naif: "Finally, individual officers of conscience, and departments with a will to police democratically, should divest from the FOP. A mass resignation from the FOP by officers of color and their white allies would send the strongest message that an old boy network of Trump supporters does not represent the modern face of law enforcement."

That will not happen because officers' interests in their contracts are more meaningful to them than abstract criticisms from activists outside the profession. Plus, even if they went to other unions, it wouldn't matter. In Texas, the FOP hardly represents any officers by comparison to the two largest groups - the Combined Law Enforcement Associations of Texas and the Texas Municipal Police Association. But those groups are as regressive and anti-reform as is the FOP where it is prominent. Frequently, the rank and file are more radical and aggressive than union management. Such behavior is not a bug among police unions, it is a feature.

On the whole, IMO reformers at Campaign Zero have suggested a much more realistic approach toward police unions, focusing on the desired outcomes vis a vis policies and contracts instead of simply opposing a group that isn't going anywhere anytime soon.


Steven Michael Seys said...

Through the use of union contracts, police have become even more a different class of citizens. The court rulings that give individual officers immunity from civil prosecution for wrongs committed during the course of their duties already keeps police from being held accountable for their actions if the administration refuse to discipline them. Now the contracts make it impossible for administrative discipline to be imposed. We now have a large class of authoritarians who are above the law they're sworn to uphold. Is there any wonder that public confidence in the police is at an all-time low? The Nazi Geheim Stats Politzei had fewer protections from prosecution.

Anonymous said...

Godwin’s Law (1990): “As Usenet discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.”

Anonymous said...

It sounds a lot like sour grapes on the part of reformists to me, the very real concerns on both sides of the equation belittled when such people want to truncate the rights to free speech and free association. Grits is right about that mindset compared to the Steven's of the world, the courts not giving blanket immunity to police for malfeasance in any state I've been to. Police managers want to be able to dictate and micromanage their officers without question while most officers just want to do their job and go home at the end of their shifts.

Anyone suggesting police officers are immune from administrative discipline has absolutely no experience in such matters, the best written contracts merely requiring those managers to prove their allegations to a reasonable degree of certainty and they don't like when a court of law or legally binding arbitrator takes exception to the twisted logic they come up with to suggest guilt. If that degree of fairness is more than reformists appreciate, they'd scream bloody murder if held to the same standard as they want to impose on officers. That doesn't mean some contracts or specific interpretations of limited provisions shouldn't be changed but the idea that they are all suspect and wantonly favor officers committing crimes is way off base most times.

john said...

While unaccountable unions are always a problem, and Cops include a large "silent majority" that will never rock the boat; a bigger problem of the Cops' War On America is due to the political pressure controlling cop management, etc.
Insulation, unaccountability and immunity? You bet your life. They'll kill you and claim they feared for their lives, to go on paid administrative leave, while unions & political press cover it up. Not killed, only under an intense THREAT of force?* Haven't been threatened, yet? Or are you just okay with it, settling for it, submitting, acquiescing?
How can unions have power, in Texas? FEW unions do. But THESE Cop unions are heavily armed and serious about protecting their jobs, as well as any of the court industry that might back them up. Thus, they cover each others' backs.
*We The Poor People will be hunted down. That's why few in the press, etc.--including 2A groups!, ever speak out to oppose police, courts, etc. This is why historically, "you can't fight city hall."
Steven was right on, with "a different class of citizens," "authoritarians who are above the law they're sworn to uphold." Sure, THEY can enforce their own 1A rights, even at the expense of ours. Our 1A & other rights extend about to public whining about it.

Gritsforbreakfast said...

11:34, thanks for the corroboration, but I do think you're underselling concerns with police contracts. Some only deal with pay, benefits, etc., and that's one thing. When they start doling out special protections for officers accused of misconduct (e.g., getting to see evidence against them 48-72 hours bf being questioned), that's a horse of a different color. IMO contracts have no business going into those areas and I do consider all of them that do so suspect. It's just an inappropriate thing to be bargaining - the officers and police management have a shared interest in covering up the worst problems from the public.

Anonymous said...

Grits, perhaps the objective truth is somewhere in the middle? After all, what good is a pay raise and pension if it can be taken away on the whims of management without proof of misconduct, the mere suspicion enough to derail a career? I can't speak for Austin or San Antonio but Dallas and Houston both have scores of examples of management overreach to a degree that applicants would never have applied knowing about beforehand. And the political branch running the management constantly looks for ways to subvert the plain reading of such contracts, opting to take a "guilty unless proven innocent" approach for appearances to voters. Yet should a manager be caught doing far worse, they get a pass from the good old boys network except in very rare cases such as Houston just experienced via their pension reform, nearly their entire command staff pushed out for their new chief to hand select his own network.

I'd suggest we should work on extending any "special" protections to everyone else rather than limit them to any small group, the reasoning given makes a good case for doing so. That is why someone arrested for a crime need not say a word and ask for his attorney while some police officer invoking such a right is faced with losing his livelihood regardless of the merits of the allegations. So giving an officer a cool down period is similar to a person refusing to immediately testify against his own interests, in my experience there being more misconduct by police management than low level worker drones. In Houston, that contention is supported by the fact that some 80% of all complaints come from within the organization compared to 20% coming from without, hardly a "blue line of silence" as the "John's" of the world try to sell us.

As far as covering anything up, human nature does a wonderful job of preventing that from happening, conspiracies require absolute silence which is something you just don't get from most police officers who are all too willing to espouse their viewpoints or knowledge. Such things work far better for small groups in the know that have a vested interest but even then, it's only a matter of time before any "secret" gets out.

Anonymous said...

Anon 7:26, I can speak for Houston and confirm they treat all employees like mushrooms, always have and always will, by keeping them in the dark and feeding them ____. Those expecting fire fighters, cops, or any other employee on the bottom half of the organizational charts to know details about what other employees are doing are selling a false story. If an event is newsworthy, the chances are that most employees heard it from the news, not the organization itself.

Gritsforbreakfast said...

@7:26, vis a vis "extending any 'special' protections to everyone else," are you suggesting criminal suspects should get "to see evidence against them 48-72 hours bf being questioned"? I don't think that's going to fly! In fact, even suggesting it demonstrates what an extremely slanted system we have when it comes to police misconduct.

These same unions would scream to high heaven if it were ever seriously suggested that the same rules should apply to everyone else. They WANT those exceptional protections, but nothing I've seen makes me imagine they'd ever support extending them to everybody else.

Anonymous said...

There are TWO different investigations as far as cops go, particularly in major incidents. The first is the same criminal investigation that any person would face in a similar situation, such as a self defense shooting. The second is the administrative investigation.

There is case law that an officer cannot be forced to participate in the first one (same rights as everyone else) but can be forced to participate in the second one.

Contract provisions refer to the second kind of investigation, the administrative one. Additionally, there is significant scientific evidence that waiting to do interviews after critical incidents, at least one sleep cycle, leads to a better, more accurate statement. Even the fairly liberal IACP has endorsed that as a best practice. Establishing "rights" in an administrative investigation is certainly an item that can and should be collectively bargained, and LE labor associations find it important to include such things because of their own experiences with LE management being kind of stupid and occasionally cruel, for the same reasons that any bureaucracy displays those kind of traits.

Bottom line is that these protections are things that many cops feel importantly about for administrative and disciplinary practices that they are willing to bargain some pay and working conditions issues in exchange for protections from arbitrary administrative actions.

These are also entirely separate from legal protections from criminal prosecution under state law and the Constitution and Qualified Immunity from civil suit. QI, by the way, is only available when there are no fact disputes about what happened and a judge can determine, as a matter of law, that the officer did not violate Constitutional law. It isn't any sort of blanket immunity; it is "qualified" by the officer's actions being lawful.

Gritsforbreakfast said...

The processes are not separate as a practical matter, 8:48, the administrative protections end up controlling, even if the officer allegedly committed a crime. Pretending one process doesn't affect the other is disingenuous, and it's not credible to imagine that the public somehow won't notice the double standard. They've noticed.

Anonymous said...

The processes are somewhat separate. The Admin can know what the Criminal knows, but the Criminal cannot know what the Admin knows, unless they learn of it independently. While it may be more of legal fiction than some would like, the officers still enjoy the same 5th Amendment protections that everyone else does.

Taking a hard line against that would probably lead to officers who would never speak to criminal investigators without counsel present and would mainly be through prepared statements (which most already do) and bare minimum cooperation on admin investigations, which again, most already do. That is a matter of self-interest that you could not realistically get any person to abandon, particularly in today's political climate.

It isn't a double standard: ANY employer can order you to answer questions and fire you if you refuse. And any employee can agree to answer questions instead of being fired and reserve their 5th Amendment rights. Cops just have more rules, agency policies and contract provisions about such things because it comes up for them a lot more often than other government employees. Garbage collectors and tax appraisers don't get into on-duty shootings very often.