Lawmakers need to set statewide standards for police accountability

In the months since the May killing of George Floyd by Minneapolis police, and the subsequent national protests, state legislators here in Washington and across the country have begun to consider fundamental reforms to police accountability. It’s about time.

The people of Washington are right to demand effective accountability for officers who use excessive force, engage in racially biased policing, or lie in the course of their work. And it’s not just front-line officers who need to be held accountable. The supervisors and managers who allow this behavior to persist, as it has for decades, also need to be held to account.

Frankly, we won’t see meaningful and sustainable changes in police behavior until we have statewide standards on officer accountability that replace the city-by-city, county-by-county hodgepodge of rules and procedures that exist today. State legislators need to create unassailable and incorruptible systems to hold officers accountable for their behavior and to root out those with patterns of consistent misconduct. Importantly, this means doing away with private arbitration where labor arbitrators often agree misconduct occurred but believe the punishment too harsh, thereby substituting their judgment for that of the police chief.

We’ve seen this in Washington. In 2014, a Seattle police officer entered the back seat of a police car and punched an already handcuffed woman, breaking her eye socket. After being fired by former Chief Kathleen O’Toole, the officer used his option under state law to appeal his dismissal to a private arbitrator. Even though the arbitrator agreed with Chief O’Toole and ruled the officer used excessive force, the arbitrator ordered him reinstated.

In a case from Centralia, as reported in the The Atlantic, a 2011 investigation found that a police officer used his Taser on several people involved in nonviolent, minor offenses for up to 30 seconds, an exceedingly long and dangerous period to apply electrical shock. The officer lied in his documentation of the incidents and was suspended for two weeks without pay, the latest in a long history of discipline actions against the officer for reckless behavior, failing to appear in court, and false arrest. The next year, he was found to have failed to go to the aid of another officer and was fired. The arbitrator hearing his appeal upheld the two-week suspension for improper use of his Taser but overruled his termination and ordered him back to work.

These arbitration appeal outcomes — where an arbitrator finds misconduct but then substitutes their judgment on discipline instead of honoring the determination of the chief of police — actually happen with astounding frequency. A recent study by Professor Stephen Ruskin at Loyola University Chicago School of Law found that arbitrators reduced or overturned discipline in 52% of cases and ordered police departments to rehire previously terminated officers in 46% of cases. This appeal system blocks effective accountability and undermines public trust. While police officers certainly deserve appeal rights, those appeals should be open to public scrutiny, and be limited to the facts considered by the chief, in other words not a de novo review, and guided by a consistent burden of proof standard. A system that allows private arbitrators — who often “split the baby” to win favor with both sides in order to secure future work — to impose their judgment for that of the chief of police destroys any chance for an effective system of accountability.

Legislators who seek these necessary reforms will run into fierce opposition from police unions who, over the years, have persuaded lawmakers here and across the country to adopt barriers to accountability. Without strong, reform-focused legislation, these unions will continue to insist on collective bargaining agreements that obscure accountability by limiting how and when officers can be interviewed after alleged misconduct, mandate the destruction of disciplinary records, effectively allowing problematic officers to “hide” in the bureaucracy, limit civilian oversight, and even narrowly limit internal investigations thereby creating a statute of limitations that blocks effective discipline.

Police unions, with the acquiescence of elected officials who don’t want to be perceived as soft on crime, demand a discipline appeal process that is private, shielded from the public’s scrutiny, shattering transparency and any chance of building public trust. Police discipline standards and procedures should not be subject to collective bargaining, not for public servants we grant the power of arrest and deadly force.

Finally, the Legislature should strengthen the authority of the state’s Criminal Justice Training Commission to revoke the certification of a police officer as proposed by State Sen. Jamie Pedersen, mandate reporting of misconduct findings to the state, create a statewide, searchable and public database of misconduct investigations, grant cities and counties subpoena power for misconduct investigations, and establish a state agency with the authority to investigate and prosecute criminal misconduct by police.

These changes in state law will enhance police accountability, build public trust and honor the many police officers who serve the people of Washington with distinction every day.