Key to reforming policing rests with state legislatures

Chenique
3 min readNov 17, 2020

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Driven by the deaths of civilians in encounters with police, protesters in cities across the United States have urged mayors and council members to enact policing reforms.But those demands omit important players: State lawmakers, not city leaders, hold the most powerful key to changing the way police are policed.

That’s because decades-old labor laws, approved by state legislatures, require cities to bargain with officers, through their unions, over any changes to working conditions. Police unions have used those laws to win contract provisions that make it difficult to hold individual officers accountable for misconduct.

In much of the country, city leaders face an uphill battle against union contracts, police-friendly state laws and pro-police legal rulings.

A Reuters analysis of labor contracts signed or extended over the last five years by 100 of the nation’s largest cities found that at least 25 neutralize outside oversight boards by limiting who can serve on them, their access to department records or their ability to question officers.

Legislative protections for police abound. A 2012 Minnesota law allows police chiefs to disregard the recommendations of civilian oversight boards. A 1974 Florida law allows accused officers to choose a member of the board reviewing their alleged misconduct.

In the states of Michigan, Maine and Washington, labor boards have sided with police unions in prohibiting cities from establishing civilian review boards without bargaining.

Last October, President Trump established a policing commission to deliver recommendations for “law and order” reform ahead of this year’s presidential election. Among its proposals, first reported by Reuters: allowing officers accused of wrongdoing to view body camera footage before speaking to internal investigators and urging the Justice Department to affirm support for “qualified immunity,” a Supreme Court precedent that shields from civil liability officers who are accused of using excessive force. A recent Reuters investigation found that qualified immunity has made it harder in recent years for people to win lawsuits that accuse cops of excessive force.

A federal judge earlier this month halted the commission’s work on the grounds that it had violated public meetings laws and allowed law enforcement groups to have undue influence.

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President-elect Joe Biden has pledged to expand Justice Department scrutiny of systemic misconduct by police. Under Trump, Reuters reported last month, such federal efforts were sharply curtailed.

Still, there is no national standard, and the battlegrounds are local. Here’s how the conflict is playing out today in three places:

NEWARK, NEW JERSEY
In 2016, New Jersey’s largest city agreed to establish a civilian oversight entity in response to a scathing Department of Justice investigation into the Newark Police Department that found widespread civil rights violations by officers and a lack of internal accountability.

The city passed an ordinance establishing one of the strongest review boards in the nation, with the power to conduct its own investigations, and compel documents and testimony.

The police union sued, arguing the board violated civil service and collective bargaining laws. In August, the New Jersey Supreme Court agreed, stripping Newark’s review board of subpoena power.

The city plans to appeal the decision. Meanwhile, Newark Mayor Ras Baraka is urging state lawmakers to enact legislation that would give civilian review boards across the state the right to compel officer testimony and force police departments to hand over records during investigations.

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