Void the police contracts
BY ANDREW KOPPELMAN, OPINION CONTRIBUTOR — 09/13/20 




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Police unions all over the United States have negotiated contracts that protect officers from discipline for misconduct. The result is that, so long as these deals are in force, cities are stuck with officers who are uncontrollably reckless and violent. But a body of forgotten law from the 19th century shows that states can free themselves from these fetters.

In most large urban departments, the contracts thwart misconduct investigations by protecting officers from being interrogated immediately after an incident. Often the officer is given all the information that the questioners have before the interrogation, including any videos, making it easier to lie about what happened. Complaints are voided unless they are filed within a very short time. Anonymous complaints are prohibited. Investigations that are not concluded quickly are automatically ended. They are not recorded in the officer’s personnel file.

In Chicago, Officer Jason Van Dyke had more than 20 complaints against him, but the union contract prohibited the city from placing them in his file. So, his pattern of bad behavior went unnoticed until he shot Laquan McDonald 16 times. Van Dyke claimed self-defense, asserting that McDonald threatened him with a knife. No action was taken until the public release of a video showing that Van Dyke was lying and that he started shooting while McDonald was walking away. Van Dyke was subsequently convicted of second-degree murder. Absent the union contract, he might have been taken off duty before he could kill anyone. Better discipline of the worst officers would have a huge effect: The 1 percent of officers who have the largest number of civilian allegations against them generate almost five times the number of payouts and over four times the total damage payouts in civil rights litigation as police as a whole.

Discipline of police officers should not be a subject of collective bargaining. Yet the contracts are there, and some of them will not be revisited for years to come. They are the reason why unionized police are more likely to engage in violent misconduct and more likely to kill civilians, particularly nonwhite ones. The foolish concessions of past governments protect that small minority of cops who are as bad as Van Dyke.

America has faced this kind of problem before. When that happened, the Supreme Court empowered states to escape contracts that threatened the public — and that power still exists.

In the early 19th century, the nation experienced a religious revival. Its most momentous consequence was the new antislavery movement that led to the Civil War. But it also targeted other moral failings, notably gambling.

States had for many years funded public works by contracting with private corporations to run lotteries, typically for a term of years or until a given sum of money had been raised. By the late 1820s, there were hundreds of such grants.

The Constitution prohibits states from “impairing the obligation of contracts.” In the 19th century, the Supreme Court cited the Contracts Clause in nearly half of the cases in which it struck down state laws. No agreement between a legislature and a private entity could be undone. In one notable case, a legislature could not reverse a corrupt land deal enacted by its predecessor.

So, states that wanted to abolish gambling had their hands tied. Courts held that opponents of lotteries had to wait until the existing grants expired.

Eventually, however, the courts took a different view, one that remains the law today. In 1879, the U.S. Supreme Court upheld a state law rescinding a 25-year grant of the right to operate a lottery. It declared, in a decision that has never been overruled:

“No legislature can bargain away the public health or the public morals. . . . Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.” The agencies of government “can govern according to their discretion . . . but they cannot give away nor sell the discretion of those that are to come after them.”

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If states can abolish lotteries, even when past legislatures have contracted away that right, then they must have the power to abolish contractual terms that endanger the safety of their citizens. The problem might be addressed by a simple state law declaring that discipline of police officers may not be a subject of collective bargaining, and that any contractual limitation on such discipline is void as against public policy. There are notorious political obstacles to reform, but in some states, the police unions will be less powerful at the state level than when dealing with individual cities.

Discussions of police misconduct today tend to focus on broad remedies such as abolishing qualified immunity or criminal prosecution of officers. But before reaching for this heavy artillery – tools that are only likely to have any effect in the most egregious cases, leaving most police misconduct untouched – states should consider reclaiming their power of ordinary supervision, the capacity to get rid of employees who cannot do their jobs competently and safely.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020).