Stephen Rushin

Abstract

This Article empirically demonstrates that police departments’ internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.

Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor law may partially explain this failure. Most states permit police officers to bargain collectively over the terms of their employment, including the content of internal disciplinary procedures. This means that police union contracts—largely negotiated outside of public view—shape the content of disciplinary procedures used by American police departments.

By collecting and analyzing an original dataset of 178 union contracts from many of the nation’s largest police departments, this Article shows how these agreements can frustrate police accountability efforts. A substantial number of these agreements limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations. In light of these findings, this Article theorizes that the structure of the collective bargaining process may contribute to the prevalence of these problematic procedures. It concludes by considering how states could amend labor laws to increase transparency and community participation in the negotiation of police union contracts.

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