How cities lost control of police discipline

Kim Barker, Michael H. Keller and Steve Eder, The New York Times

Posted at Dec 23 2020 12:22 PM

How cities lost control of police discipline 1
A Black Lives Matter demonstration in Portland, Ore., July 30, 2020, during the months of protests following the death of George Floyd. Any significant police reforms across the US are likely to require dismantling deeply ingrained systems that shield officers from scrutiny and make it difficult to remove them. Mason Trinca, The New York Times 

It took Portland, Oregon, almost $1 million in legal fees, efforts by two mayors and a police chief, and years of battle with the police union to defend the firing of Officer Ron Frashour — only to have to bring him back. Today, the veteran white officer, who shot an unarmed Black man in the back a decade ago, is still on the force.

Sam Adams, the former mayor of Portland, said the frustrated disciplinary effort showed “how little control we had” over the police. “This was as bad a part of government as I’d ever seen. The government gets to kill someone and get away with it.”

After the death of George Floyd at the hands of Minneapolis officers in May spurred huge protests and calls for a nationwide reset on law enforcement, police departments are facing new state laws, ballot proposals and procedures to rein in abusive officers. Portland and other cities have hired new chiefs and are strengthening civilian oversight. Some municipal leaders have responded faster than ever to high-profile allegations of misconduct: Since May, nearly 40 officers have been fired for use of force or racist behavior.

But any significant changes are likely to require dismantling deeply ingrained systems that shield officers from scrutiny, make it difficult to remove them and portend roadblocks for reform efforts, according to an examination by The New York Times. For this article, reporters reviewed hundreds of arbitration decisions, court cases and police contracts stretching back decades, and interviewed more than 150 former chiefs and officers, law enforcement experts and civilian oversight board members.

While the Black Lives Matter protests this year have aimed to address police violence against people of color, another wave of protests a half-century ago was exploited to gain the protections that now often allow officers accused of excessive force to avoid discipline.

That effort took off in Detroit, partly as a backlash to the civil rights movement of the 1960s, when police officers around the country — who at times acted as instruments of suppression for political officials or were accused of brutality in quelling unrest — felt vulnerable to citizen complaints.

Newly formed police unions leveraged fears of lawlessness and an era of high crime to win disciplinary constraints, often far beyond those of other public employees. Over 50 years, these protections, expanded in contracts and laws, have built a robust system for law enforcement officers. As a result, critics said, officers empowered to protect the public instead were protected from the public.

In many places, the union contract became the ultimate word. The contract overrode the city charter in Detroit. The contract can beat state law in Illinois. The contract, for years, has stalled a federal consent decree in Seattle.

Many police contracts and state laws allow officers to appeal disciplinary cases to an arbitrator or a review board, giving them final say. Arbitrators reinstate about half of the fired officers whose appeals they consider, according to separate reviews of samplings of cases by The Times and a law professor. Some arbitrators referred to termination as “economic capital punishment” or “economic murder.”

Disciplinary cases often fall apart because of contractual or legal standards that departments must show a record of comparable discipline: A past decision not to fire makes it harder to fire anyone else.

Because many departments don’t disclose disciplinary action for police misconduct and there is no public centralized record-keeping system, it is difficult to determine how many cases are pursued against officers, and the outcomes.

And police chiefs acknowledge that they don’t always seek the discipline they think is warranted. That can lead to problem officers remaining on the streets. Rather than gamble on arbitration, some chiefs allow officers to quit or opt for financial settlements, which can enable them to move on to other departments with seemingly unblemished records.

“You would pay them to leave,” said Roger Peterson, the former police chief in Rochester, Minnesota, who said he had negotiated such payments for about a dozen officers during his 19-year tenure. “It stunk.”

Union leaders defend the disciplinary protections, saying that police work is difficult, and that rules help ensure that chiefs don’t impose discipline because of political pressure or personal biases. Public outcry, they said, can unfairly influence a city’s decision to fire an officer accused of excessive force. Will Aitchison, the union lawyer who represented Frashour in Portland, said the arbitration process protected officers like him who were fired because of “political expediency.”

"Nobody wants a bad cop,” said Brian Marvel, a San Diego police officer and the president of California’s largest law enforcement labor organization. “Good cops want bad cops out as bad as anybody else. But we still have to protect the due-process rights of all our members.”

Even so, many leaders argue that the protections handcuff them. Eric Melancon, chief of staff to the Baltimore police commissioner, drew a direct line between the laws from decades ago and the difficulties today.

“If George Floyd were to happen in Baltimore city,” he told a state policing commission, “we would not be able to terminate those officers.”

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'THIS PERSON IS BLACK' 

In 2017, Zachary Rosen, a white officer in Columbus, Ohio, kicked an armed Black suspect on the ground as another officer tried to handcuff him. Rosen was eventually fired for using “unreasonable” force.

Backed by his union, he appealed to an arbitrator. Under the contract, the Columbus Police Department needed to prove that it had “just cause” to fire him. Arbitrators typically consider a set of questions, including: Was the officer disciplined similarly to other department officers who behaved similarly? And did the officer receive warnings to correct poor behavior before being fired?

The arbitrator noted in his 2018 decision that video footage showed the suspect’s “head severely bouncing off the concrete due to the strength, force and leverage” of the kick. But he also noted the officer’s nearly seven years of “unblemished” service. In addition, he wrote, no one else in the department during the current chief’s tenure had been terminated for excessive force.

Instead, Rosen was suspended for three days and given back pay. He now works a desk job, reviewing misdemeanors. In a statement, the union lawyer who represented him said the details of the case had been oversimplified. “A particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” she wrote.

More than a dozen current and former chiefs told The Times they were troubled that an arbitrator or review panel decided whether a fired police officer remained off the force. Some felt chained to past practices and unable to fire officers for improper behavior if prior chiefs had set more tolerant standards.

Even though relatively few officers in a department go through arbitration, chiefs and critics say those cases affect disciplinary decisions, morale and officer assignments. Chiefs and reform advocates say that even one high-profile reversal can send a devastating message to the public — that a chief doesn’t control discipline, and that seemingly dangerous behavior will be tolerated.

“It looks bad,” said Gil Kerlikowske, a former police chief in Seattle and three other cities. “The department has fired someone. And then this person is back.”

A Times review of about 200 recent arbitration decisions compiled from Bloomberg Law, Nexis and Minnesota, one of the few states that make decisions readily accessible, shows that since 2010, arbitrators have reinstated fired officers in about half of the cases. Stephen Rushin, a law professor at Loyola University Chicago, found in an analysis of more than 600 arbitration decisions from the past 15 years that arbitrators had reduced discipline or ordered officers to be rehired about half the time.

Union leaders faulted police administrators for the reversals, often saying they disciplined without good reason or failed to properly document past discipline.

MAKING CHANGE 

After the killing of Floyd, protests and calls for police reform gripped the nation.

In June, Oregon lawmakers adopted a package of laws, including one restricting the power of arbitrators. Now police departments and unions are supposed to agree on discipline guidelines — which arbitrators must follow, rather than basing decisions on earlier cases.

But that law wouldn’t have altered the outcome of the disciplinary case against Frashour, because the arbitrator found no underlying policy violation in the shooting of Aaron Campbell, which still hangs over Portland a decade later.

At the time of the shooting, Frashour, a policeman for nine years, had twice received counseling for poor judgment in using force, records show. In one case, he had pulled over the wrong vehicle being sought for reckless driving, leading to “physical damage and injury,” records show. In the other, he had deployed his Taser without warning on a man filming a police search. A jury in a civil case found him and another officer liable for excessive force, awarding the man more than $200,000. Frashour declined to comment.

On the day in January 2010 when Campbell was killed, police had been called for a welfare check on the 25-year-old, who was distraught over the death that morning of his younger brother of heart and kidney failure. He was known to have a gun. He had earlier threatened to commit suicide by police. And he had initially holed up in his former girlfriend’s apartment with three children.

Frashour, acting as a sniper, watched the children walk out of the apartment. Then he saw Campbell come out, walking backward, his hands behind his head.

Another officer fired six beanbag rounds at Campbell’s back after he failed to obey orders to raise his hands higher. Campbell reached for his back. Some witnesses said he might have been checking to see where he had been hit; Frashour told investigators he thought the man was reaching for a weapon. He shot Campbell, who was unarmed.

Grand jurors, after concluding that they could not indict the officer, demanded that the police department make systemic changes, saying that “something must be done to correct this.”

The city paid a $1.2 million settlement to Campbell’s family. Besides terminating Frashour, officials suspended the officer who fired the beanbags and two supervisors for two weeks without pay.

Despite all the Portland officials who wanted Frashour to be fired, the arbitrator — hand-picked by the city — sided with the union, as did the state agency that handles police certification. The arbitrator said a reasonable officer could have concluded that Campbell “made motions that appeared to look like he was reaching for a gun.”

Campbell’s mother, Marva Davis, said she felt horrible when she learned that Frashour was back on the force. She lost her two sons in one day.

“It was murder,” she said. “Across the country, the laws need to change. All the police officer has to say is they fear for their life. And then they’re justified in shooting someone in the back.”

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