The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Minneapolis police officer who killed George Floyd had a history of misconduct. According to news reports, he had previously been placed on leave after using lethal force and was the subject of at least 17 complaints. Details of the complaints are sparse in the reports. This is not surprising as police disciplinary records are often not maintained in publicly accessible form, if they are maintained at all. Minneapolis also seems to have a history of not disciplining police.
The New York Times editorialized this week that the killing of George Floyd is yet another reason to reconsider the doctrine of qualified immunity. Under this doctrine, as currently applied by the Supreme Court, police officers are often immune from civil suit for violent misconduct. I blogged about a recent Reuters report on this problem, and the Cato Institute has created this resource on the problems with qualified immunity.
Limiting (if not eliminating) qualified immunity would certainly help (though there's a reasonable debate whether this is more properly done through legislative reform than through the courts). On the other hand, the effects of eliminating qualified immunity may be limited if police departments indemnify their officers. Should qualified immunity be limited, you can be sure such protection will immediately rise to the top of the agenda for every police union in the country.
If one wants to tackle the structural obstacles to holding rogue police officers accountable, it seems to me one has to address the power of police unions. As a Reuters report from a few years back documented, police union contracts in major cities routinely include provisions that erase disciplinary records and obstruct meaningful discipline (let alone prosecution) of police officers who abuse their authority.
Recent academic research further demonstrates that police disciplinary procedures established through union contracts obstruct accountability and (as I noted in this post) collective bargaining for police officers appears to increase police misconduct. This is not surprising. Through collective bargaining, police unions demand protections from disciplinary procedures that would not otherwise be approved, oppose consent decrees and other measures to increase police accountability, and (given the power of police unions in state and local politics) they receive relatively little pushback.
Most police officers may discharge their duties faithfully and effectively. Police deserve our appreciation and respect for the hard work they do. At the same time, when police officers engage in misconduct, discipline and accountability are essential. Obstructing the discipline of the minority of police officers who engage in misconduct undermines the relationship between police forces and the communities they are charged to serve and protect. It also prevents justice when police officers use deadly force without cause.
If we want there to be fewer events like the killing of George Floyd, it's to tackle police unions.
UPDATE: Additional preliminary research by Rob Gillezeau finds some additional effects of police unionization. Specifically, his work appears to find that the introduction of collective bargaining produces "a modest decline in policy employment and increase in compensation with no meaningful impacts on total crime, violent crime, property crime or officers killed in the line of duty." More sobering is his finding of a "substantial increase in police killings of civilians over the medium to long run (likely after unions are established) with an additional 0.026 to 0.029 civilians killed in a county each year of whom the overwhelming majority are non-white." Tweets Gillezeau: "with the caveat that this is very early work, it looks like collective bargaining rights are being used to protect the ability of officers to discriminate in the disproportionate use of force against the non-white population."