WASHINGTON — Democratic lawmakers quietly added a new clause to their far-reaching policing bill just before it passed in the House that could put a chink in the armor of police union contracts that frustrate efforts to hold officers accountable for misconduct.
The little-noticed addition would bar federal funding for police departments if they enter into new union contracts that would prevent the Justice Department from enforcing court rulings or consent decrees to end patterns or practices of unconstitutional police actions, such as racial profiling and excessive use of force.
“This could make consent decrees even more effective at promoting officer accountability in local police departments,” said Loyola University of Chicago Law School professor Stephen Rushin, author of studies about union contracts that shield officers accused of misconduct.
The Democrats' measure — though limited in its sweep and overshadowed by the bill’s ban on chokeholds, no-knock warrants, racial profiling and lynching, and end to qualified immunity for police — highlights lawmakers’ balancing act of seeking to support police while at the same time trying to curb police brutality.
The weeks of large and multiracial protests across the country following the videorecorded police killing of George Floyd reflect Pew Research polls last year showing a majority of Americans think police treat Blacks less fairly than whites and have pushed lawmakers to seek criminal justice reforms.
Passage of policing reform legislation in Congress appears unlikely this year because of partisan gridlock.
But the last-minute addition to the bill, based on a rejected Republican amendment, showed a new willingness by Democrats to impose conditions on collective bargaining by police unions, which are under attack from both the left and the right.
“For progressive folks in general, we are definitely in favor of collective bargaining,” said Diallo Brooks, senior director of outreach and public engagement for the liberal group People for the American Way.
But right now, he said, “People are going to point fingers at anybody who is standing in a way of real reform and police unions are kind of in the crosshairs of that.”
For decades lawmakers have proposed legislation that rarely passes to end police abuse, particularly of Black men and women, as researchers documented how law enforcement agencies and union contracts have shielded cops accused of misconduct.
Rushin, for example, reviewed 178 contracts and found a substantial number limit questioning of officers after alleged misconduct, mandate destruction of disciplinary records, ban civilian oversight, bar anonymous civilian complaints and limit internal probes’ length.
In another study of 656 police union contracts, Rushin found that in a majority of police departments the disciplinary appeals processes give accused officers multiple levels of appellate reviews, including to an arbitrator selected, in part, by the local police union or the officer.
The Washington Post in 2017 reported the disciplinary appeals process reinstated 451 of 1,881 officers fired for misconduct nationwide — including 62% of Philadelphia’s fired officers, 68% of Denver’s and 70% of San Antonio’s.
Other studies have found that once a department becomes unionized, its law enforcement officers engage in more alleged misconduct.
Soon after Floyd’s death, the Major Cities Chiefs Association blamed unions and state legislators.
“Contracts and labor laws hamstring efforts to swiftly rid departments of problematic behavior and as law enforcement executives, we call for a review of those contracts and laws,” 65 police chiefs said in a statement.
The National Fraternal Order of Police fired back that a union’s job is “to defend the rights of police officers.” A contract “is a binding agreement between two parties who mutually agreed on the terms, not a mandate imposed by a labor union,” said the group, which has 351,000 members.
Yet some in the labor movement say they are fed up with police unions, which lean right politically and defend cops facing misconduct allegations, while most unions lean left and support protests and laws against police brutality. Some have called for the AFL-CIO to expel the International Union of Police Associations. It hasn’t.
Friends and enemies
Law enforcement groups cut a wide swath in Washington, where few politicians want to be seen as anti-police. Over the past five decades Congress has showered law enforcement with plaudits and money to carry out the war on crime, the war on drugs and the war on gangs.
Federal policy has transformed police from the little-trained men hired and directed by local politicians a century ago into autonomous professionalized organizations that now demand the fealty of elected officials, scholars say.
Police chief associations and unions now pursue their agendas with endorsements of politicians and teams of lobbyists.
Over the past 20 years, the National Fraternal Order of Police, the National Association of Police Organizations and the International Union of Police Associations have reported to the U.S. Senate that they spent $10.2 million lobbying in Washington. The International Association of Chiefs of Police said it spent $1.6 million.
In that period, those associations have followed the lead of their members and backed only Republicans for president. In 2016, they endorsed Donald Trump, who is running for reelection as the “law and order” candidate. His attorneys general have spurned pattern-or-practice investigations into local police departments.
Yet the National Fraternal Order of Police, the largest association, still works both sides of the aisle. Among its political action committee’s top recipients of campaign contributions are House Majority Leader Steny Hoyer (D-Md.) and Sen. Pat Leahy (D-Vt.).
And while some police unions and groups have attacked the Democrats’ bill, the National Fraternal Order of Police said some of its provisions “will create a law that will have a positive impact” and promised to keep working with both sides in Congress. The police associations did not respond to interview requests.
The amendment that spurred the clause added at the last minute came up at a House Judiciary Committee working session on June 17.
Rep. Ben Cline (R-Va.) proposed a measure to bar Justice Department funds from going to state or local law enforcement agencies that had union contracts containing protections for officers identified by researchers as hurdles to disciplining or firing cops accused of misconduct.
And it would bar federal funding for those agencies that agree to union contracts that include anything that “would prevent the attorney general from seeking equitable relief against a law enforcement agency engaging in a pattern or practice of unconstitutional misconduct.”
Democrats expressed unease at interfering in collective bargaining between police unions and departments because they are regulated by state — not federal — laws and voted down the amendment. But they also said Judiciary Committee staff “would like to look at this further.”
After consulting with the House committee that has jurisdiction over union legislation, Judiciary Committee staff decided to stick to their own jurisdiction over the Justice Department, a Democratic congressional aide working on the legislation said.
And Democrats added the clause that threatened to withhold Justice Department funds to agencies that entered into new police union contracts conflicting with pattern-or-practice judgments of consent decrees.
On June 25, the House approved the bill that included the new clause.
If it became law under a Joe Biden administration, Rushin said, “It is easy to imagine the DOJ in the near future restarting federal investigations of local police departments and consent decrees, with this as one additional weapon in their arsenal.”
But Georgetown University law professor Christy Lopez, who led Justice Department pattern-or-practice investigations in the Obama administration, said, “I would not expect these provisions to have much, if any, impact,” because they don’t address existing police union contracts.
She cited as an example how provisions in the contract with the police union in Portland, Oregon, conflicted with a consent decree the city reached with the Justice Department.
Still, the major umbrella civil rights group, the Leadership Conference on Civil and Human Rights, called the measure “a very good first start.”
“Collective bargaining must not create barriers to police accountability or meaningful oversight, including by limiting consent decrees,” said Sakira Cook, the group's director of justice reform.
“But it is just as important,” she said, “to have state governments and a U.S. Department of Justice willing to stop unconstitutional policing.”