JUNE 29, 2016 POLICE UNION CONTRACTS AND POLICE BILL OF RIGHTS ANALYSIS Written by the Campaign Zero Planning Team: DeRay McKesson, Samuel Sinyangwe, Johnetta Elzie and Brittany Packnett OVERVIEW Police union contracts and statewide Law Enforcement Officer’s Bill of Rights laws have created a system of protections for police officers that amount to an alternate justice system, creating significant legal and structural barriers to accountability, transparency, and fairness. Of at least 4,024 people killed by police since 2013, only 85 of these cases have led to an officer being charged with a crime. Only 6 cases have led to convictions – fewer than 0.2% of known police killings. Data from some of America’s largest police departments show that officers who commit misconduct rarely face administrative consequences, either.1 It is not surprising that police officers are rarely, if ever, held responsible for their behavior, as the combination of provisions in police union contracts and Law Enforcement Officer’s Bill of Rights constitute de facto immunity from liability. Collective bargaining agreements (i.e. contracts) are simply meant to allow due process: employees negotiate with an employer over matters of working conditions, compensation, benefits, and performance management as a group, thus increasing the employee’s collective bargaining power. These agreements are meant to ensure that workers are treated fairly, with dignity and respect. They are not meant to deny other citizens fairness, dignity and respect. But that is exactly what police union contracts have done. Police unions across the country have used the collective bargaining process to circumvent basic tenets of accountability, transparency, and fairness. In short, as a result of these contracts police officers operate by a completely different set of rules. In many cases, the problematic clauses contained within these contracts appear harmless on the surface but, as our analysis shows, they impose severe restrictions on the ability of police departments and civilian oversight structures to hold officers accountable for police violence. Part I of our report will detail our analysis, conducted in collaboration with legal scholars, lawyers, and activists from around the country. Our findings demonstrate that police officers have access to an alternate justice system that allows them to act with impunity, one that is at odds with justice and simply unacceptable. Part II will present model contract language to equip citizens to directly influence the contract negotiation process with specific language to create a fairer police union contract. “OF AT LEAST 4,024 PEOPLE KILLED BY POLICE SINCE 2013, ONLY 85 OF THESE CASES HAVE LED TO AN OFFICER BEING CHARGED WITH A CRIME.” See data for Chicago, New York City, Los Angeles, and Cleveland. 1 :: Police Union Contracts And Police Bill Of Rights Analysis 1 APPROACH This review is of the police union contracts of 81 of America’s 100 largest cities* and the police bill of rights in all 14 states with such legislation to identify the ways in which these policies make it more difficult to hold police accountable. Working with legal experts, advocates, and academics with an expertise in this area, six major areas are identified wherein these contracts and bills of rights contribute to making it more difficult to hold police accountable for misconduct: 1 2 3 Disqualifying misconduct complaints that are submitted too many days after an incident occurs or if an investigation takes too long to complete Preventing police officers from being interrogated immediately after being involved in an incident or otherwise restricting how, when, or where they can be interrogated Giving officers access to information that civilians do not get prior to being interrogated 4 5 6 Limiting disciplinary consequences for officers or limiting the capacity of civilian oversight structures and/or the media to hold police accountable. Requiring cities to pay costs related to police misconduct including by giving officers paid leave while under investigation, paying legal fees, and/or the cost of settlements Preventing information on past misconduct investigations from being recorded or retained in an officer’s personnel file Of the 81 cities’ contracts we reviewed, 72 included at least one of these barriers to police accountability. 13 of the 14 states with police bills of rights also included one of these types of policy provisions. 63 cities and 12 states have three or more provisions imposing barriers to accountability. Only Aurora, Boston, Chula Vista, Dallas, Denver, Fremont, Fresno, Long Beach, and Nashville did not contain problematic provisions in their police union contracts. “OF THE 81 CITIES’ CONTRACTS WE REVIEWED, 72 INCLUDED AT LEAST ONE OF THESE BARRIERS TO POLICE ACCOUNTABILITY.” :: Police Union Contracts And Police Bill Of Rights Analysis 2 ANALYSIS WITH EXAMPLES OF PROVISIONS (For full analysis, see checkthepolice.org/review) 25 cities and 4 states disqualify certain complaints from being investigated or resulting in discipline, for example if they are submitted too many days after an incident occurs or if an investigation takes too long to complete. 50 cities and 13 states restrict interrogations by limiting how long an officer can be interrogated, who can interrogate them, the types of questions that can be asked, and when an interrogation can take place. 41 cities and 9 states give officers under investigation access to information that civilians suspects don’t get, including 16 cities that allow officers to review all evidence against them prior to being interrogated. “25 CITIES AND 4 STATES DISQUALIFY CERTAIN COMPLAINTS FROM BEING INVESTIGATED OR RESULTING IN DISCIPLINE” :: Police Union Contracts And Police Bill Of Rights Analysis 3 64 cities and 7 states limit disciplinary consequences for officers, for example preventing an officer’s history of past misconduct from being considered in future cases, and/or limit the capacity of civilian oversight structures or the broader public to hold police accountable. 40 cities and 3 states through their contracts and police bills of rights, require cities to pay costs related to police misconduct including by giving officers paid leave while under investigation, paying legal fees, and/ or the cost of settlements. 43 cities and 3 states erase records of misconduct, in some cases erasing records after 2 years or less. * Freedom of Information Act Requests to the police departments of America’s 100 largest cities (as per US Census population data) requesting their current police union contracts. Of these, we obtained 81 cities’ contracts. Birmingham, Chesapeake, and San Bernardino refused to send us contracts, while the 16 remaining cities did not have police union contracts. Statewide police bill of rights legislation was obtained online for the 14 states that have such legislation. “43 CITIES AND 3 STATES ERASE RECORDS OF MISCONDUCT, IN SOME CASES ERASING RECORDS AFTER 2 YEARS OR LESS.” :: Police Union Contracts And Police Bill Of Rights Analysis 4 CONTRACT REVIEW We reviewed police union contracts and police bill of rights legislation to examine how they make it more difficult to hold police accountable. Visit checkthepolice.org/review to view policy language and other details regarding these provisions. :: Police Union Contracts And Police Bill Of Rights Analysis 5 *Birmingham, Chesapeake, and San Bernardino refused to send contracts. The remaining 16 cities do not have police union contracts. :: Police Union Contracts And Police Bill Of Rights Analysis 6