By Henrick Karoliszyn | Inside Criminal Justice

Can law enforcement investigate their own in a fair and impartial way?

As police departments around the country weather calls for reform, and are challenged by Department of Justice consent decrees as a result of  high-profile cases involving alleged racial bias, one muscular wing of law enforcement has been playing a pivotal—but often little noticed role-- in determining how fast (and whether) police behavior changes.

Police unions have increasingly gone to bat for members who are accused of misconduct.  And they have managed to win reinstatement even for officers who have been accused of using deadly force.

Many defenders believe this is a natural extension of their union responsibilities. Like any organized labor group, they consider defending such cases to be as essential to their members’ wellbeing and morale as fighting for higher pay and better working conditions.  But a review of the role played by police labor organizations in a number of internal investigations around the country raises questions about their  impact on efforts to  reform police behavior and culture—a central goal outlined in last year’s Task Force on 21st-Century Policing.  

When Oakland (California) Police Officer Hector Jimenez was fired after fatally shooting two unarmed men in separate incidents during a seven-month span between 2007-2008, his union helped him challenge his dismissal in court, and win reinstatement as well as back pay

In 2011, an officer in Centralia, Washington, named Phillip Reynolds was disciplined for   excessively Tasing civilians. A year later, the same officer was accused of breaking eight additional department policies and was fired, but he was given his job back after his police union rallied to his defense. And in Boston, Police Officer David Williams was reinstated after being cut from his  force for using a chokehold on a civilian, and then lying about it. The same officer had previously been fired for his role in the beating of a plainclothes officer in 1999 (and then re-hired).

In each of those cases, the officers’ union played a central role in their defense.

Police unions, understandably, see their job as protecting and defending members.  There are nearly 18,000 police agencies nationwide, including more than 1.1 million employees—750,000 of whom are sworn officers— according to 2008 data.

The total number of unionized police officers around the country is unavailable—but nearly every big-city department boasts unions for beat officers and higher ranks.

Like unions everywhere, police organizations fight for higher wages, good pensions and better job conditions.  But organized police groups have waded into politics as well ---directly challenging mayors or city authorities over issues like staffing and job protection.  In several cities they have challenged police chiefs brought in to enact reforms of procedures or staffing that they consider threatening, and many have taken openly partisan stands---such as recent police protests in New York---against politicians who they claim adopt policies that weaken public safety.

Their role in internal investigations can stymie efforts to reform police culture, when police misconduct issues are translated into a classic tug-of-war between management and labor. The power of public service unions in particular has been a target for politicians in many states, and police organizations (like their counterparts in other parts of the public sector) have resisted efforts to weaken their influence.

Keeping It Secret

Still, police unions have also gone to extraordinary lengths to protect their members from public scrutiny.  A recent breach of the website of the Fraternal Order of Police (FOP), which boasts more than 325,000 members around the country, disclosed the existence of “dozens” of contracts negotiated between cities and local police union which contained secrecy clauses. 

According to a report published this month in the Guardian US, those clauses ensured that disciplinary records and complaints made against officers were “kept secret.”   Nearly one-third of the 67 contracts, leaked by hackers into the FOP site, included provisions allowing---or sometimes mandating--- “the destruction of records of civilian complaints, departmental investigations, or disciplinary actions after a negotiated period of time,” the paper said.  

The FOP, which describes itself as a  "full service member representation organization,”  which lobbies on behalf of police officers as well as provides them with  legal defense, says such provisions are necessary.

FOP President Chuck Canterbury told The Crime Report that clearing the police records from public view is up to each jurisdiction, adding that the process varies around the country.  But he maintained that privacy needs to be protected in an era of greater criticism of police, when many officers are often targets of civilian complaints and disciplinary actions that are “unfounded” or “unsubstantiated.”

Other union officials say the role they play in police-involved investigations is often exaggerated by outsiders---and rarely makes a difference in the outcome.   

Canterbury insisted that often union assistance is limited to advice.

“(Our) role is to make sure that the due process rights are protected for our members,” he said. 

Nonetheless, the privacy clauses raise doubts about the efficiency and impartiality of internal police investigations.

Although internal police investigations may alter slightly from state to state, based on what collective bargaining deals have been brokered, similar procedures typically take place around the country.

Trained investigators in internal affairs first look at whether or not an officer has violated administrative policies. Civilian review boards conduct an evaluation if a citizen chooses to file a formal complaint.  If the circumstances of the case suggest unlawful acts have occurred, local prosecutors can then decide to call in a grand jury to investigate whether charges should be filed.

Police unions try to intervene in the process as early as possible—heading off the ultimate embarrassment of an officer who faces a trial or a prison term.  They are often aggressive from the start, making statements to the press, and gathering their own information that can be presented in hearings.

Standing By Their Man

A recent example of the vocal role of police unions is the trial of a New York City Housing Authority police officer for the murder.  Officer Peter Liang was accused of fatally shooting Akai Gurley in the darkened stairwell of a Brooklyn housing project in November of 2014.  The man was unarmed at the time of the shooting. The Police Benevolent Association (PBA), which represents patrol officers in New York, nonetheless stood behind the officer.

When a jury ultimately convicted Officer Liang of manslaughter, the New York PBA was strident in his defense, charging that a guilty verdict in the case would leave New Yorkers less safe because police would be less aggressive.

“We are very disappointed in the verdict and believe that the jury came to an absolutely wrong decision,” PBA leader Patrick Lynch said. “This bad verdict will have a chilling effect on police officers across the city because it criminalizes a tragic accident.”

Ed Mullins, president of the NYPD Sergeants Benevolent Association, warned the NYPD would have to change their policing methods and stop vertical patrols in public housing, which Liang was doing at the time of the shooting.

“Commissioner [Bill] Bratton, who so often brags of the evolution of policing, now needs to suspend the efforts of vertical patrol and re-evaluate his policy,” Mullins said.

Nevertheless, Canterbury points out, unions can only be a sounding board in defense of their members’ rights. They cannot force anyone to talk to them, and they have no statutory right to be present when an officer is being questioned.

Yet many officers’ unions have in fact successfully negotiated provisions in their collective-bargaining agreements that allow for the presence of union officials during departmental interrogations.

The unions’ power to influence public opinion rests on the assumption that the majority of citizens support and rely on cops to keep them safe and—perhaps except for impoverished and minority communities where police are perceived as hostile--- can be counted on to look skeptically on charges of misconduct.

That at least has been true until the protests since the killings of unarmed civilians by police around the U.S. became an issue that cut across demographic and racial lines.

In response, unions—like many of the officers they represent---have become defensive.

Tom Nolan, a retired 27-year veteran of the Boston Police, said that while unions can and should play an important role in ensuring a fair and unbiased investigation of their members, there is often a “tacit understanding that the investigation will be done in order to report out favorably for the police officer.”

That is especial true, he says, when “the lion’s share of the investigation is conducted by the agency that is being investigated.”

Nolan, who is now associate professor of criminology at Merrimack College in Andover, Ma., says this makes the role of unions obstructive in reforming American policing.

“Police unions see a significant part of the reason for their existence as advocating strenuously, loudly, and aggressively for their members,” says Nolan. 

“They typically do not question the legality of the behavior engaged in by their members, nor the legality of incidents that they might become involved in, at least publicly. If police union officials have any private reservations regarding the legality of behavior engaged in by their members, they will remain publicly silent and stoic at the very least.

“Usually the default response is to stridently deny any criminal culpability on the part of their membership.”

But if this is true, then how else should the police unions act if not to guard their members?

Can the process get in the way of changing law enforcement practices? Some experts believe that unions can aid both police and civilians by protecting officers who stand on the right side of the law.

‘A Positive Force’

“Police unions can be a positive force, both for law enforcement and the community they serve,” says Tod Burke, a former Maryland cop and Associate Dean of Criminal Justice Forensic Studies Criminal Justice at Radford University in Radford, Va.

“Police unions have an impact and can show support for officers… this can happen by showcasing the positive actions of law enforcement that is often ignored by the media.”

Burke says unions also help rally support for their officers in certain cases - although this can have both positive and negative effects.

 “They can place pressure on cases,” he adds of unions. “But they can also backfire. Unions in major cities can turn them into a pissing contest; then you’re not cooperating with one another, you start opposing one another.”

This was evident in the wake of the fatal shooting of two NYPD Police Officers in Brooklyn in 2014. At the time, PBA President Pat Lynch vocally scolded the New York City administration.

“There is blood on many hands tonight — those that incited violence on the streets under the guise of protest, that tried to tear down what New York police officers did every day,” Lynch said in a now-infamous comment.

“That blood on the hands starts on the steps of City Hall, in the office of the mayor.”

In the same vein, others in the law enforcement community have questioned the negative scrutiny police unions officers get as a result of internal investigations. Some believe it can change how policing occurs – for the worse.

“What is happening now is police are second-guessing their instincts and training they have because they’re scared to get indicted, that they may have to go to jail for doing their job,” says Joseph Occhipinti, former President of the Federal Agents’ Police Benevolent Association and the founder of the National Police Defense Foundation, a non-profit which provides legal services to the law enforcement community.

“Today we have law enforcement officers who act in good faith to do their jobs who are seen as politically incorrect.”

When police-involved shootings from Ferguson, MO., to Charleston, SC., have fueled anti-police rhetoric, unions have played an important role in protecting their officers, says Occhipinti.  

“Police officers are the target of assassinations,” he continues.  “If it wasn’t for the unions trying to advocate for our police officers, no one would.”

Still, the unions’ aggressive role in defending their members has raised ethical questions about reform in policing throughout the country.  And these queries are not altogether new.

The United States Commission on Civil Rights took up the issue of law enforcement practices and use-of- force policies in its landmark 1981 study, "Who's Guarding the Guardians?"  The report made dozens of recommendations based on reviews of internal misconduct, external abuse complaints, and nationwide records regarding police misbehavior.

The US Commission on Civil Rights report called for impartial internal affairs, efficient outside reviews, and a preemptive structure to keep checks on officers with abuse complaints. But nearly two decades after its inception, Human Rights Watch stated the report was ignored.

“None of the cities we examined has all of these mechanisms in place,” it states.

The report went on to say:

The commission had noted, as well, that one major barrier to federal prosecution of police officers who commit human rights violations is the "specific intent" standard:  Prosecutors must prove that an officer specifically intended to deprive an individual of a constitutional right in order to win brutality cases. Yet in the seventeen years since the commission's report, neither Congress nor the Executive Branch of the federal government has actively pursued a revision of the statute.

Although the Commission found major metropolitan cities like New York City and Los Angeles had cut crime rates, the police departments were tarnished by the number and types of police misconduct charges they addressed.

The Commission is currently working on an updated report which will, among other subjects, make recommendations on unions and their involvement in police investigations.

Martin R. Castro, chairman of the U.S. Commission on Civil Rights, told The Crime Report that how police investigate their own is a “big concern” in the work, which is in line with the ideas surrounding reform in American policing.

“It’s a complicated, multi-cultural issue and requires attention,” Castro said.  “All communities of color are suffering from the sort of conduct we have seen around the country.”

 Castro said that the study will not single out unions for condemnation but will look at strategies that could better protect civilians and police from misconduct.

Still, some vocal opponents believe police unions are interfering.

“The number one impediment to reforming policing in the United States are police unions,” Nolan said. “Most state laws governing public employee unions mandate that management must collectively bargain with unions over any changes in working conditions, and this includes virtually any reform the “police administrators might seek to implement.

“By (their) organizational subculture, police unions typically see any reform as a threat to their authority to have an active and vocal role in the running of most police departments. Union leaders who might seek a collaborative role with management in facilitating reform would not be re-elected to office.”

Canterbury counters that unions need to be involved in any reforms, especially those that involve investigating police misconduct.

“Unions don’t prevent the department from conducting a fair investigation,” Canterbury maintains.

 “To say anything else would be to assume that everybody *(who is) part of the investigation has no character or ethics, which is not the case.”

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Henrick Karoliszyn is an award-winning journalist based in New York City, specializing in criminal justice reporting. A former staff writer at the New York Daily News and the  New Orleans Times-Picayune, his work has appeared in The New York Times, the Wall Street Journal, Aeon Magazine, and Fusion. Henrick welcomes comments from readers. 

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Originally published by The Crime Report on February 22, 2016. Reprinted with permission of editor.

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