Politics

Why Is It So Hard To Convict Police Officers? The Answer Is In The Fine Print.

CREDIT: AP Photo/Alex Brandon

Baltimore police stand guard of the department's Western district police station during a march for Freddie Gray, Wednesday, April 22, 2015, in Baltimore. Gray died from spinal injuries about a week after he was arrested and transported in a police van.

William Porter, one of six Baltimore City police officers involved in the death of Freddie Gray to face trial, will find out his fate this week when a jury issues its first ruling. The jury deadlocked Tuesday and continued deliberating Wednesday. Whether or not there’s a conviction, all of Porter’s lawyers’ fees are being paid for by the Baltimore police union.

Fraternal Order of Police Lodge 3, the police union in the city, is “taking ultimate responsibility for all the officers,” Jim Pasco, executive director of the national Fraternal Order of Police, told the Wall Street Journal last month.

The union’s involvement in the case extends beyond paying the officers’ defense fees. A number of safety valves enshrined in the union’s contract all but guarantees that accusations of misconduct will never reach a criminal court.

A study by a criminologist who often examines policies for the DOJ found earlier this year that the contract between Baltimore and the Fraternal Order of Police contains several “offensive provisions” that prevent accountability and that violate “best practices” across the country. Provisions including the expungement of internal records and the existence of a “do not call” list of officers who cannot testify “impede the effective investigation of reported misconduct and shield officers who are in fact guilty of misconduct from meaningful discipline,” the study found.

The problems extend far beyond Baltimore. As Campaign Zero found in its new Police Union Contract Project, provisions are written in to union contracts in major cities across the country to protect officers accused of excessive force or abuse. The activist-led group analyzed more than 50 contracts and found that the vast majority have provisions that block accountability and protect officers from being investigated, indicted, and ultimately convicted.

“In the aftermath of Ferguson and other incidents that have happened across the country, [we looked] at how police unions have been a reactionary force that in many ways are used to protect the officers involved in these incidents,” Sam Sinyangwe, one of the founders of Campaign Zero, told ThinkProgress. “Beyond the rhetoric and the stuff they were doing to raise money for officers who had been charged or indicted, the question was: what more were police unions doing on a policy level to protect those officers and block accountability?”

The group identified four major ways in which union contracts protect officers in ways that prevent accountability:

1. Preventing police officers from being interrogated immediately after being involved in an incident.

2. Preventing information on past misconduct investigations from being recorded or retained in an officer’s personnel file.

3. Disqualifying misconduct complaints that are submitted 180+ days after an incident or that take over 1 year to investigate.

4. Limiting civilian oversight structures from being given the authority to discipline officers for misconduct.

Campaign Zero found that these four provisions are consistently written into contracts for police unions in major cities across the country. Austin, Texas and Columbus, Ohio are particularly problematic, Singyangwe said, but most major cities have at least one of these “unfair provisions.”

campaign zero chart

CREDIT: Campaign Zero

Vince Canales, president of the Maryland Fraternal Order of Police, told ThinkProgress he takes issue with the idea that union contracts are trying to prevent accountability.

“We’re always open to seeing what’s being presented out there,” he said. “However, I take offense with the whole idea that there’s any police union that’s out here attempting to prevent police accountability. We support police accountability wholeheartedly.”

Canales insists that Baltimore’s contract shouldn’t be viewed as an obstacle and that the contract had absolutely nothing to do with Gray’s death. As far as the particular issues that Campaign Zero found with Baltimore’s contract — that it erases officer personnel files and and limits civilian oversight — Canales said that Maryland actually legislates the requirement of civilian review boards and that police shouldn’t be the only employees to share their personnel files.

“If you want to open up personnel records, you shouldn’t be limiting it to just individuals or a particular category of employment. It should be across the board for all government workers,” he said. He also defended the grace period before interrogations as simply giving officers the time to find a lawyer.

Samuel Walker, the criminologist who issued the Baltimore study, however, said the wait is highly problematic and it is now a best practice in policing to question officers as soon as possible when force is used or when suspects receive injuries.

Campaign Zero is pushing to have these provisions removed from contracts — but also to start a dialogue about what a model police contract might look like. “There’s a lot of room for these contracts to actually be a positive tool instead of a tool that blocks accountability,” Sinyangwe said. The contracts could be used in beneficial ways, like guaranteeing diversity in police forces, or including incentives to train bilingual officers, as Oklahoma City’s contract does.

While the group plans to pressure police unions to reform, it may be difficult to start conversations with union leaders who do not see problems with their contracts in the first place. And some of those union leaders are moving in the opposite direction.

Last week, the New England Police Benevolent Association, which has about 5,000 members across New Hampshire and Massachusetts, announced its endorsement for Donald Trump, the candidate who blamed President Obama for the Freddie Gray protests and the “thugs who are happily and openly destroying Baltimore.”

Sinyangewe was not surprised that the police union endorsed Trump, saying it “speaks volumes to at least where some of those unions stand.”

“I’m hopeful that ultimately through pressure through activism, we’re able to expose those ties and chart a path forward that demonstrates justice,” he said.

Canales said he would be open to looking at Campaign Zero’s model police union contract, but ultimately outside groups like Campaign Zero shouldn’t be involved in the negotiating process.

“As far as collective bargaining agreements and contracts are concerned, that’s a matter that’s addressed at the table between labor and management,” he said. “Not outside individuals who don’t even participate in the process. While I understand them wanting to provide some input — we’re always going to be open to looking at it — individuals groups that actually sit at the table and negotiate those contracts…shouldn’t be hamstringed by a document such as that.”

Civil rights groups often try to pressure police unions to change their contracts. In Chicago, the American Civil Liberties Union and other groups have testified before the city council to argue that four specific provisions in the current contract undermine the ability of the city and its citizens to hold rogue police officers accountable for misconduct.

Jonathan Smith, the former chief of the special litigation section in the DOJ’s Civil Rights Division, agrees that “rigid union contracts” restrict the ability of police chiefs and civilian oversight bodies to tackle misconduct. He wrote in the New York Times that police unions and law enforcement “bills of rights” have eroded the public’s trust.

Unions currently use their influence to block reform and circle the wagons when an officer stands accused. After the six officers were charged with Gray’s death, the president of the Baltimore police union wrote in an open letter that a special prosecutor should take over for Baltimore State’s Attorney Marilyn Mosby because her decision to charge the officers proved she was politically motivated.

A spokesman for Mayor Stephanie Rawlings-Blake told the Baltimore Sun she is aware that legal impediments in the union contract create an impression that officers receive preferential treatment, and she will push for changes again in 2016 when the contract is renegotiated.