89 Pages Posted: 22 Sep 2016 Last revised: 16 Aug 2017
Date Written: September 21, 2016
Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years’ worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices.
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