Abstract
Excerpted from: Nick Place, Double Due Process: How Police Unions and Law Enforcement “Bills of Rights” Enable Police Violence and Prevent Accountability, 52 University of San Francisco Law Review 275 (2018) (129 Footnotes) (Full Document)
LAW ENFORCEMENT BILLS OF RIGHTS, or LEOBORs, create “double due process” by taking the sacred constitutional rights of people suspected of criminal wrongdoing and transplanting those rights onto the internal disciplinary process. LEOBORs are either codified at the state level or woven into contracts and collective bargaining agreements. Police unions are staunch advocates for these measures, whether lobbying and exerting explicit political power to enact a state statute or weave their protections into local contracts contracts often negotiated beyond the prying eyes of the public that the police serve.
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Police officers, like other public employees, possess due process rights derived from a property interest in their continued employment. Before deprivation of employment (the property interest that triggers due process protections), a public employee is entitled to notification of reasons for impending or possible dismissal and a hearing before he or she is dismissed. As a constitutional right applicable to public employees, police officers enjoy these same rights. Similarly, if a police officer is under criminal investigation or charged with a crime, he or she would enjoy the same constitutional protections as any other citizen. The law has been appreciative of unique strains the job of policing might place on cops' rights. For instance, management cannot coerce police to self-incriminate if questioned about the performance of their duties.
But law enforcement officers also have a singular power in American society: the power to use violence to coerce citizens, including the threat and actual exercise of lethal force. Every day there is the potential for police to come into great personal danger, to be faced with difficult situations implicating their safety and the safety of others. Their need to have the ability to responsibly use coercive force is real and legitimate. But it cannot come with the assumption that any force is legitimate because a police officer used it.
Given this awesome power, it makes sense for society to demand forceful regulation over how it is used. The Supreme Court recognized in National Treasury Employees Union v. Von Raab that law enforcement officers could be held to narrow constitutional protections when there was a public interest in regulating their conduct. Though Von Raab dealt with the reasonableness of a search--drug testing customs agents without a warrant or individualized suspicion--the Court reasoned that there is a strong public interest in ensuring the integrity and accountability of law enforcement, as well as the good discretion of agents of the state empowered to use deadly force. When society grants police the power to use force against civilians to coerce desired behavior, and even to kill, it has an unquestionably strong interest in regulating the use of that power.
LEOBORs in statutes and collective bargaining agreements are written for one purpose and “sold” publicly for another. They are written, in statute and contract, mostly as seemingly reasonable stipulations any group of employees might have for their bosses, especially in a field with as much potential for “customer dissatisfaction” as policing. LEOBORS are pushed by police unions and their representatives as necessary to ensure police have at least the same rights as criminals. Without LEOBORs, these arguments go, the law offers more protections to potential murderers and thieves than cops. But when police make mistakes or abuse their power, the actual effects of LEOBORs reveal a third, more dangerous purpose: putting even the most vile, destructive actions of law enforcement officers beyond serious accountability. The juxtaposition between the advertisement, the product, and the side effects leaves no doubt that LEOBORs were made for, and have been very effective at, thwarting accountability for police misconduct.
LEOBOR protections can be primarily statutory, generally on the state level (as in Maryland), negotiated by police unions into collective bargaining agreements on the local level (as in Cleveland), or mandated at the state statutory level subject to supersedence by police unions that may have more leverage over local politics as they hammer out their collective bargaining agreements (as with Illinois and Chicago).
A preliminary note on the effects of police misconduct: though the racist nature of the American criminal justice system is far beyond the scope of this paper, any analysis of policing in America must include race. Almost every coercive action taken by police disproportionately affects minorities, especially black men. In 2014, ProPublica found black males were twenty-one times more likely to be shot dead by police than white males. The Washington Post found that forty percent of unarmed people shot dead by police were black, despite comprising only six percent of the American population. The Post's data--which was compiled by the newspaper itself because no federal agency keeps track of police killings--found the majority of those killed by police had some kind of weapon in their possession when police took their lives, but that black and Hispanic men disproportionately made up the dead who had exhibited “less threatening behavior.” In 2014, Department of Justice statistics showed black drivers were thirty-one percent more likely than white drivers to be pulled over for traffic violations, and were more likely to be searched than whites. As of 2010, black men were six times more likely to be incarcerated than white men. Police are the most visceral instruments of a criminal justice system that disproportionately kills, seizes, searches, and cages minorities. Legal instruments that prevent holding police accountable for their conduct and the organizations that peddle them must be analyzed with these facts in mind.
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LEOBOR provisions, whether contractual or statutory, often address legitimate labor concerns. Those provisions will not be addressed here. Instead, this paper will cover only the provisions most glaringly aimed at thwarting accountability and preserving police power: escape routes designed to shield from any accountability those police officers who abuse their discretion and commit overtly or subtly destructive acts against the communities they serve. The provisions below are squarely aimed at preserving the power of police to do what they please to whom they please.
A. Scope
LEOBOR provisions are billed as protecting officers' “due process” rights, but the Fifth Amendment's guarantee that life, liberty, or property will not be taken without due process of law does not exclude police officers. The “due process” smokescreen does not relate to criminal matters: instead, it creates similar “protections” within the realm of organizational inquiries into police actions. Nor are police magically exempted from the Fifth Amendment's protections. LEOBORs vary from state to state on what sort of “inquiry” is covered. Official investigations into officer misconduct explicitly trigger the LEOBOR “protections,” but some LEOBORs leave open the possibility that routine questioning and supervisory review by police supervisors could trigger LEOBOR protections.
It should be noted that any practical difference in rights between administrative and criminal investigations is irrelevant: any criminal prosecution of a police officer for on-duty conduct will begin with an administrative inquiry.
B. Delays Before Interviewing Officers
A common LEOBOR provision institutes “waiting periods” between an incident or the beginning of an investigation into an incident and when a police officer can be questioned. Maryland's provision is the most odious. It gives any officer under investigation the right to counsel, and the officer may postpone interrogation for up to five business days to find counsel in the administrative investigation. In effect, officers under investigation can mandate a seven-day waiting period before they can even be questioned about an incident.
Five of the six officers indicted for the killing of Freddie Gray spoke to investigators shortly after Gray's death--a fact only made public because a lawyer representing some of the officers admonished them in a press conference for speaking to investigators. The lawyer's implication: had the officers taken the LEOBOR's protections, they would not be facing charges today.
A ten-day waiting period--or any mandated waiting period--before questioning an officer is indefensible. It is purely an opportunity to confer with fellow officers, find out what other witnesses know or are going to say, and get stories straight. If police officers are entitled to representation in the administrative setting, the union could make a representative available on call for such incidents, eliminating the need for a waiting period. Waiting periods generate the perverse situation where the loved ones of people killed or injured by police are notifying other loved ones and explaining the tragedy before police are ever questioned.
Neither Illinois's LEOBOR nor Chicago's CBA mandates a waiting period for investigators to speak with an officer after a shooting incident, but the Chicago CBA stipulates that if the officer is interviewed about the incident again in the future, the officer must be provided with a written summary of his previous remarks to investigators. Like transcript provisions below, this serves no legitimate labor purpose or truth-finding function; it is the FOP's transparent attempt to ensure an officer suspected of wrongdoing keeps his story straight. This was probably extremely useful for Van Dyke and the other Chicago cops who all reported that McDonald approached Van Dyke with a knife, swinging it at him and leaving Van Dyke no other choice but to shoot McDonald--a lie exposed by the dashcam footage in that case.
Cleveland's CBA has no mandatory waiting period after a shooting, but it seems to have done little to obtain accurate, candid, or fresh testimony from Timothy Loehmann. His first known statement was signed eight days after the killing, and contains an obviously coached and careful restatement of events, including clinical language such as calling the dead twelve-year-old “suspect” and “the male,” and the omnipresent post hoc justification for killing an unarmed person: the assertion that the “suspect” was reaching for his waistband.
C. Giving Officers A Script to Work Off
Illinois requires transcripts of any interrogation of police officers be made available to the officer interrogated without “undue delay.” In Maryland, a recording or transcription of an interrogation must be made available to the interrogated officer no later than ten days before any subsequent hearing. Cleveland's CBA requires any recording, transcript, or written statement produced as the result of an interview be available immediately after the interview, unless it is pursuant to a criminal investigation. Chicago authorities have seventy-two hours to provide interviewed cops with a transcript or recording of their interview unless that same officer is re-interrogated within that 72-hour window. In that case, the transcript or recording must be provided before the follow-up interrogation.
In a survey of LEOBOR provisions, Keenan and Walker dismiss these requirements as “constitut[ing] a basic right,” without providing any support for that assertion. Were such a requirement a “basic right” in the public-employee due process context, it seems to be unmentioned in the requirements of notice and a hearing laid out in Cleveland Bd. of Educ. v. Loudermill and its ilk. No such “basic right” exists in the criminal context, though suspects in criminal investigations would certainly enjoy being able to review their statements to police in hours-long interviews before being interviewed again or testifying; such a reference would help the suspect keep their story straight. The Cleveland CBA's exclusion of this requirement in the context of a criminal investigation concedes this is not a “basic right.”
Giving interviewed officers copies or recordings of their words ensures they have a script to work from if interviewed by investigators or have some other hearing. Chicago's provision, in particular, makes this purpose clear: by not allowing officers to be re-interviewed without seeing the story they had previously given investigators, the Chicago FOP ensures statements stay consistent. When coupled with waiting periods before interviews, the script is sure to be well-rehearsed. These two provisions transparently give cops an opportunity to get their stories straight before being interviewed about potential misdeeds, an opportunity they would rightly never give an average citizen. These provisions do not protect employees from menacing management, and they certainly do not further any truth-finding mission. They plainly ensure that officers facing questions about their actions have time to formulate a story and then a script to help them stick to that story.
D. Keeping Identities of Officers Secret
Many LEOBORs have provisions preventing the release of the names or other identifying information of cops accused of or under investigation for wrongdoing, regardless of the charge. Cleveland prohibits the release of the officer's home address (understandable) or photograph (probably irrelevant, given the Internet). Chicago's CBA completely prevents disclosure to media of the identity of any officer under administrative or criminal investigation--but officers exonerated by the process can tell the department to make a public proclamation of their exoneration. While releasing every single administrative procedure subject's name would be excessive, surely the public has a right to know which of its sworn peace officers is suspected of criminal wrongdoing.
E. Do Not Call Lists
Both Baltimore's union-negotiated contract and the state's LEOBOR have “do not call list” provisions. If a police officer has credibility issues while testifying in court, prosecutors may put that officer on a “do not call” or “Brady” list as an unreliable witness not to be put in front of a court again. Maryland's LEOBOR prevents any adverse action against officers because they are placed on such a list--not even demotion or a reduction in pay. One would think being deemed untrustworthy by prosecutors might warrant formal discipline, but the statute explicitly forbids it. It is unclear what benefit this provides to anyone except cops that prosecutors do not trust.
F. Complaints
The Cleveland CBA requires that any civilian complaint be signed by the complainant. The DOJ noted this provision seemed to be specifically aimed at discouraging complaints. If one fears police violence or harassment--a potentially legitimate fear, given the Cleveland Police Department's well-documented brutality a complaint opens the complainant and their loved ones up to the possibility of reprisal. The Chicago FOP's contract forbids anonymous complaints unless they allege a criminal offense on the part of the officer: less strict but still without any valid purpose other than discouraging complaints. Further, Chicago cops under investigation must be given the names of complainants against them. The Illinois LEOBOR requires a sworn affidavit for any complaint against police officers, raising the same concern. Maryland's LEOBOR only requires names to be attached to civilian complaints of brutality. But victims of police brutality need anonymity the most because they would have a real fear of reprisals from police. This provision is not some feint towards accountability--it has the same aim of discouraging complaints as Cleveland's.
G. Treatment During Interrogation
All three cities analyzed here, and most other LEOBOR-protected police, have rules about the manner in which police must be interrogated. Interviews will occur during working hours, at the officer's or investigators' workplace, sessions cannot go over a certain period of time without a break, and no foul language will be used towards the officer. This is not to say that police officers under interrogation should be held for long hours, early in the morning, threatened, or cursed at, but these provisions illustrate the “extra rights” to which police unions imagine their members are entitled. Remember that union bosses tell us these bills are about equalizing cops' rights with criminals and providing “a basic level of constitutional protection.” It is not difficult to imagine what those same unions' reactions would be if criminal suspects had to be treated so comfortably.
H. Who Can Investigate Police
Unions historically have been and currently are hostile to civilian review of police actions. As a result, LEOBORs typically mandate that only law enforcement can investigate law enforcement. Maryland requires investigators to be sworn law enforcement officers unless the governor directs the attorney general to step in. Cleveland's CBA seems to assume only police officers investigate police officers, but does not mandate it. Chicago's CBA specifically includes a civilian review authority, independent of the police department.
I. Giving Cops a Heads-Up
Many LEOBOR provisions require disclosure of evidence or testimony about an incident to officers under investigation. In Cleveland, the CBA requires written statements of witnesses testifying at an administrative hearing (as well as all previous statements given by the officer under investigation) to be given to the officer under investigation ahead of time. It is a criminal trial discovery concept transplanted to the administrative context, a true example of double due process.
Under the Chicago CBA, if investigators have video or audio recordings of an incident, they can choose whether or not to give officers access to that evidence before interrogation. If investigators choose not to give officers access, and the officers lie and directly contradict the audio or video evidence, they cannot be charged with a Rule 14 violation. “Rule 14” is the rule covering false statements. So, if officers lie about the circumstances surrounding a shooting, and investigators have video proving they lied, the officers cannot be disciplined for lying unless they were shown the video beforehand. But if they were shown the video beforehand, they would be on notice that they needed a new story. The Chicago CBA ensures officers cannot be punished for lying when contradicted by audio or video evidence--the types of evidence most likely to be able to override an officer's word, especially if their victim is deceased. Remember that Jason Van Dyke and his fellow officers blatantly lied about the circumstances leading to Laquan McDonald's killing. It is unknown whether they were shown the video in advance (it is difficult to fathom how they told the tale they did if they were shown the video), but if they were not, the department could not even discipline them for lying. More disturbing, though, is that investigators had the video exposing Van Dyke's lies for almost a year and he was not disciplined until the tape was released to the public.
V. Conclusion: Defeating Double Due Process
The common LEOBOR provisions above are not reasonable concessions to laborers. They are not good faith measures intended to help police officers do their difficult job while safeguarding them from heavy-handed management or restoring rights unjustly stripped away. The contradiction between the sales pitch for those provisions and the real world effects reveals their nature as codified escape routes for police to avoid accountability for their actions. LEOBORs are pushed by police unions that show a disdain and distrust of the population their members serve and utter hostility towards anyone who would take away their power or who suggests that maybe, just maybe, policing in America can be better. The highly publicized police violence of the last few years have opened many Americans' eyes to what their fellow citizens--far too often people of color--already knew: American policing can be violent and cruel. If we want it to be better, double due process must be destroyed.
Nick Place is a graduate of the George Washington University Law School, class of 2017.
