SEATTLE (AP) – An Oregon police officer lost his job and returned to work after fatally shooting an unarmed black man in the back. A Florida sergeant was fired six times for excessive violence and theft of suspects, while a Texas lieutenant was fired five times after being charged with hitting two women, making threats, and committing other offenses.
These officers and hundreds of others across the country were fired, sometimes repeatedly, for violations of the policy, but got their jobs back after challenging their case with an arbitrator who overthrew their discipline – an all-too-common practice that some legal experts and police forces, for example, stand in the way of real accountability.
“Arbitration inherently undermines police decisions,” said Michael Gennaco, a police reform expert and former federal civil rights prosecutor specializing in police misconduct. “It is astounding to see arbitrators regularly putting people back to work.”
The murder of George Floyd at the hands of a Minneapolis police officer led to weeks of protests and calls for reform, but experts say arbitration can block those efforts.
Arbitration, the appeals process used by most law enforcement agencies, contributes to officer misconduct, limits public oversight, and reduces morale, said Stephen Rushin, a law professor at Loyola University in Chicago who last year study on arbitration published at the University of Pennsylvania Law Review.
“Arbitral police arbitration is one of the main accountability issues in the country,” he told The Associated Press. “You can’t change an organization if you have to keep hiring people you know are going to do bad things.”
When a complaint of misconduct is made against an officer, it is generally investigated internally, and if a policy violation has occurred, the chief or other officer may impose discipline ranging from an oral reprimand to a multiple suspension days to termination.
An officer who objects can appeal to an arbitrator. Every state and municipality is different, but this is the most common process. Police unions claim that arbitration is cheaper and less time consuming than a lawsuit, so it says in their contracts.
Arbitrators are usually lawyers who focus on employment law and in most cases they have the final say. The process can take years, and agents fired and re-hired can get their wages back for the time they were not working.
The contract between the Seattle Police Union and the city states that the burden of proof to fire an officer is “more than the preponderance of evidence,” in cases of a crime that can “stigmatize” an officer and make it more difficult. to look for work elsewhere.
This type of demand is common, Gennaco said, adding, “The increased standard for termination cases is another example of a union agreement that grants police special rights.”
James Pasco, executive director of the National Fraternal Order of Police, which has 351,000 members nationwide, said management should do a better job hiring officers.
“Instead of acknowledging their recruitment and screening failure, they want to blame problem officials for the union contract,” Pasco said Monday. “If they did the right recruitment, training and supervision, we wouldn’t be able to use arbitration.”
It is unclear whether some of the cases will be quashed due to an arbitrator’s personal preference or flaws in the internal investigations, or a little of both, said Rushin, the law professor.
A Seattle cop was fired for hitting a handcuffed woman in the back of his patrol car in 2014. He appealed and the arbitrator reduced his sentence to a 15-day suspension. The city appealed that decision to the court, and the judge restored his resignation.
That’s an unusual outcome, Rushin said. More often, union contracts make the arbitrator’s decision final and a court cannot overturn it.
Portland, Oregon officials oppose an arbitrator’s decision all the way to the Oregon Court of Appeals, but lost their bid to enforce Agent Ron Frashour’s resignation.
Frashour and another officer had gone to Aaron Campbell’s house on January 29, 2010, outraged by his brother’s death. The officers ordered Campbell to leave the house and he came out unarmed and backed with his hands on his head. Frashour shot Campbell in the back and killed him.
Portland filed a federal lawsuit with the Campbell estate for $ 1.2 million in 2012 and city officials fired Frashour, concluding that Campbell was not a threat. However, an arbitrator ruled in 2012 that the city should restore him. The city appealed and lost again.
San Antonio officials have repeatedly ordered Lieutenant Lee Rakun, but he has successfully appealed his dismissal five times, according to reports. His most recent suspension took place in 2018 because he left work early and defied authority. He again appealed to that firing.
Rakun is not alone. San Antonio TV station KSAT found that two-thirds of fired officers had returned to their jobs since 2010.
Erik Walsh, manager of San Antonio City, said the current collective bargaining agreement limits the chief’s ability to properly discipline officers.
“We plan to take those issues to the next contract negotiation with the Police Union,” he said. “I hope the Police Union will agree that these cases affect and harm the community in our police station.”
A Florida police officer who was fired six times went back on patrol in 2018. An arbitrator ordered the Opa-locka police to order Sgt. German Bosque after being fired for tampering with evidence in 2013. A 2011 Sarasota Herald-Tribune report said Bosque had 40 internal affairs complaints, including 16 for battery or excessive violence.
When an arbitrator changes or throws away the sentence, it can have a demoralizing effect on executives.
“One of the most common complaints I’ve heard from the chiefs is that they say why an unelected referee, who doesn’t know our department, doesn’t know our history, why they’re the ones who can decide what type of punishment is exaggerated and what type of punishment is reasonable? said Rushin.
No state or federal agency tracks the results of arbitration, but media investigations have documented hundreds of officers returning to work after discharge. A Washington Post report documented 1,881 officers who were made redundant between 2006 and 2016, and 451 got their jobs back through arbitration.
Those infected agents can tax departments, communities and the criminal justice system.
“It is critical to understand that arbitration not only means that you have an officer who is not the best,” said Rushin, “but it often means that they cannot do their job the same way as other officers. And that is a burden that the community bears because we are responsible for paying their salaries. ”
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