Police and their unions, prosecutors, and politicians let police escape accountability.
Discussion Guide
- Who are some of the powerful people and institutions who “protect” officers? According to the video, how and why do these players protect cops? What do you think are some of the shared goals of these actors?
- Have you ever wanted to see a cop convicted for killing someone? Why are police officers rarely convicted for shooting and killing people? Even if cops were convicted, do convictions address the needs of families and communities? What alternatives would you want to see?
- Who do you think of when you think of people killed by police? Did you know that nearly half of the people killed by police have a disability, including Laquan McDonald? How does our legal system harm Black disabled people? How does the framework of disability justice inform what we need to do to end police violence?
- After the killing of George Floyd last summer, uprisings erupted across the country and hundreds of thousands of people demanded that our cities “defund the police.” What do people mean when they say “defund the police?” According to the video, what are some of the reasons we should divest resources from the police?
- What are the different models of justice? What is transformative justice? In a transformative justice model, when something bad happens, what are some questions you may ask someone who has done harm? Someone who has experienced harm?
Explainers
Independent counsel/special prosecutors play a role in prosecutions involving officers facing criminal charges resulting from an officer involved shooting.
What are independent counsel/special prosecutors? How are they utilized?
Independent counsel and special prosecutors* are appointed to help eliminate any conflict of interest that may arise when a local prosecutor is tasked with prosecuting when the case poses a conflict of interest or some other disqualification for the prosecuting attorney (i.e. the prosecutor is a criminal defendant), or to handle political or controversial prosecutions that government officials fear will not be prosecuted absent a special counsel.
Many local prosecutors are elected and rely on the support of police unions to win elections and remain in office. This dynamic may influence a prosecutor's decision in taking any actions that may upset the police union. Therefore, a special prosecutor is perceived to be able to handle the matter without the added pressures of local politics or the biases of preexisting relationships.
*Independent counsel and special prosecutors are used interchangeably. The more common term is special prosecutors.
How are independent counsel/special prosecutors assigned to a case?
Independent counsel/special prosecutors are not automatically assigned in cases of police violence. While the process varies from state to state, they can be assigned a case by 1) order of a judge, 2) appointment of the Attorney General or 3) The Department of Justice initiates a federal prosecution. In some states, such as California, a grand jury can call for a special prosecutor. The Attorney General will then select the special prosecutor. In order to trigger a federal prosecution, an officer must "willfully" deprive another's rights in violation of 18 U.S. Code § 242 - Deprivation of rights under color of law.
What role do independent counsel/special prosecutors play in cases of police violence?
When police violence occurs, an internal investigation is conducted by other police officers who investigate the accused officer(s), presenting yet another inherent conflict of interest. The results of the internal investigation are then shared with the local prosecutor who then decides whether or not to press charges.
Even in circumstances where local prosecutors choose to criminally prosecute officers for police violence, the decision on whether or not to indict the officers usually rests with the grand jury.
A grand jury is a jury of 16-23 people who hear the prosecution’s case and determine whether the accused person should be indicted. Grand jury proceedings are not open to the public and the records are usually sealed.
The information presented to the grand jury mostly includes the information gathered during the internal investigation of the police department, and local prosecutors often work alongside the police department with putting together the case that will be presented to the grand jury. In many instances, the grand jury may vote not to pursue an indictment.
Independent counsel/special prosecutors, on the other hand, may hold the power to independently investigate police violence cases and bring indictments without a grand jury. It is important to note that some local prosecutor offices have departments for “special prosecutors” that handle these types of cases, but they are not independent, outside prosecutors. Rather, they are select prosecutors who work within the same local prosecutor’s office alongside local police departments.
Resources
Police associations, also known as police unions, maintain power and influence for police in local cities.
What are police unions? Do they act the same as other work unions?
Police unions are associations that advocate on behalf of cops in four major areas: police contract negotiations, disciplinary proceedings, politics, and shaping the public perception of police.
Because of their classification as public sector unions, police associations benefit from state laws that determine which public workers have the right to collectively bargain, dictate what unions are allowed to bargain over, and what happens when both sides can't come to an agreement. A significant amount of their power and legitimacy stems from the public’s conflation between police associations and actual labor unions. Yet scholars, activists, and labor academics have all urged the public to confront the reality that police associations and labor unions are two different entities.
How do police contracts protect cops?
Police unions represent cops in employment contract negotiations with government officials. When confronted with any threats to police power and authority, police unions run the gamut of legal, political, and media strategies to protect policing. By threatening things like work slow downs and mass resignations, police unions use these negotiations to create unique protections for cops that make it difficult to discipline officers. They do so by including contractual terms that:
- Disqualify complaints against officers submitted too many days after an incident
- Keep police from being interrogated immediately after an incident and detail how, when, or where they can be interrogated
- Give officers access to information that civilians don’t get prior to being interrogated
- Require cities to pay costs related to police misconduct including giving officers paid leave while under investigation, paying legal fees, and/or the cost of settlements
- Prevent the retention or disclosure of past misconduct records
- Create grievance and arbitration rules that let police challenge, and potentially overrule, any disciplinary action they might be subject to
How do police unions protect officers from discipline?
Law enforcement can rely on police unions to cover any expenses they accrue when subject to discipline, including lawsuits, by paying monthly or annual fees to a police union. In turn, police unions provide officers with the financial and legal support they need to guide them through any disciplinary proceedings and avoid liability.
In what ways are police unions influential?
Police unions spend millions of dollars on political activities like lobbying and campaign fundraising to influence criminal legal policy. They support electoral campaigns for tough on crime prosecutors (who are less likely to prosecute police for misconduct), advocate for state and federal laws (like local Law Enforcement Bill of Rights legislation that add to police impunity or Blue Lives Matter laws that perpetuate the myth that police are the real victims of violence and discrimination ), and more. Police unions also directly sue government bodies that pass legislation weakening police power and impunity, using any arguments they can to prevent these policies from being enacted.
Police unions fund and provide officers resources like “killology” trainings that reinforce the narrative that police are necessary guardians operating in “war zones.” Police unions also use fear mongering techniques to villanize social movements and victims of police violence in the media. They openly referred to groups like Black Lives Matter as terrorist organizations, have threatened work slowdowns after officers like Daniel Pantaleo (who murdered Eric Garner in 2014) were fired, and make comments like “act like a thug, you’ll be treated like a thug,” after 12-year Tamir Rice was killed by a police officer.
How do Police Unions Impact Local Organizing?
As communities across the country have begun thinking of new ways to create community safety and address harm without police, police unions have challenged their efforts at every turn.
- In the summer of 2020, Los Angeles County residents passed Measure J. Approved by 57% of voters, the measure directed the county to invest 10% of its unrestricted funds into alternatives to policing and incarceration. After a lawsuit from a coalition of law enforcement unions, and despite intense opposition from activists and county officials, a Los Angeles County Superior Court Judge found that the measure interfered with the county supervisors’ budgetary discretion and declared Measure J. invalid.
- In 2020, the city of Austin, Texas voted to cut police spending from 40% of its $1.1 billion general fund to approximately 26%. The Austin police funds were set to be reallocated to emergency medical services for COVID-19, community medics, mental health first responders, and other services. In response, The Texas Municipal Police Association created highway billboards displaying the words, “Warning! Austin Police Defunded, Enter at Your Own Risk” and “Limited Support Next 20 Miles,” in an attempt to perpetuate the idea that cuts to police lead to increases in violence.
- In 2022, the Washington D.C., Fraternal Order of Police launched an advertising campaign to “raise awareness of the public safety crisis in the District of Columbia and the responsibility that elected officials have for making it worse.” In their campaign materials, including videos on social media, the police association claimed city council members and their efforts to defund the police led to a crime wave in the city.
Resources
Police culture plays a important role in shielding officers from accountability. Officers invoke the “blue wall of silence.” to protect fellow officers.
How does police culture protect cops?
Police culture functions by creating direct and indirect systems designed to protect police officers. Because of these structures, internal investigations of police officers often lack the transparency, accountability or enforceability needed to create systemic change.
How and why internal Investigations leave no transparency or accountability?
As many as 14 states have a bill of rights written specifically for police officers to protect them when they are under internal investigation. These states include: California, Delaware, Florida, Illinois, Kentucky, Louisiana, Maryland, Minnesota, Nevada, New Mexico, Rhode Island, Virginia, West Virginia, and Wisconsin. Some common rights that that are listed in these laws include:
- Restricting internal affairs investigators from questioning the officer until after the officer has had a “cool off period,” which is usually at least a week.
- Parameters around how long an officer can be questioned for, and what time of the day, and limits to the number of investigators (who are also fellow officers) who can be present during questioning.
- Officers have the right to appeal their case to a hearing board or civil service.
- Statute of limitations which preclude an officer from being disciplined if a certain number of days have passed since the misconduct occurred.
- Continued pay while on suspension, and payment of the officer’s attorney’s fees.
These processes have been criticized because they afford officers rights that are often not extended to citizens who are being treated as suspects, creating inequities that undermine accountability.
What practices like hiring/firing/transferring and administrative reassignment further protect cops?
Administrative reassignment, also known as “paid leave” is another aspect of police culture that undermines accountability and is backed heavily by the power of police unions. When an officer is under investigation for a serious allegation, they are placed on administrative reassignment while the investigation takes place. Officers retain both their pay and benefits while on administrative reassignment. Many police departments give supervising/high ranking officers to determine when it's permissible to return the officer to active duty without involving those who are conducting the internal investigation. These protections undermine the ability of financial liabilities to act as a deterrence or accountability mechanism in officer misconduct.
Finally, even when an officer is terminated as a result of serious misconduct, they are often able to transfer to other police departments where they continue to harm other communities. These officers are sometimes referred to as “wandering officers,” defined in the Yale Law Journal by writers Ben Grunwald and John Rappaport as “law enforcement officers who are fired from one agency only to be rehired by another.” Grunwald and Rappaport conducted a study on this subject in 2020 using a data set of about 98,000 full-time law enforcement officers in Florida covering about 500 police agencies over a 30-year period and made the following findings:
- During any given year, there are about 1,100 full-time law enforcement officers (roughly 3%) working in Florida who had been previously fired from other Florida agencies.
- Police officers who are fired usually get rehired by another agency within three years.
- These “wandering officers” tend to move to smaller agencies with fewer resources and slightly larger communities of color.
- When a wandering officer gets hired by a new agency, they tend to get fired about twice as often as other officers and are more likely to receive “moral character violations,” both in general and for physical and sexual misconduct.
What is the “Blue Wall of Silence”?
The blue wall of silence refers to law enforcement’s well-documented refusal to report their fellow offier’s misconduct or otherwise take actions that could result in another cop’s discipline. Regardless of whether a cop committed a minor violation or took the life of a human being, police will either remain silent or actively lie to protect their own. Those who do speak out on acts of misconduct may be labeled as whistleblowers and often face retaliation from other officers.
Police unions are notorious for their aggressive enforcement of the blue wall of silence. They use their tremendous resources and influence to ensure that police officers accused of misconduct are protected in the courts and supported in the media. Police unions have even been known to expel their own members for breaking the blue wall of silence and reporting their fellow officer’s violent misconduct.
Resources
