Not Enough Police Transparency

Rights of Officers

This literature review focuses on the Legal Aspects of Criminal Justice Management with a focus on legal rights/freedoms, rules, discipline, due process, and the politics of being a public employee, specifically law enforcement officers. The peer-reviewed articles used for this review explore issues such as police unions, use of force, arbitration, and the political influence of law enforcement, which are important in understanding laws, rules and politics of law enforcement, which officers in their roles as public employees, must know.

Police Unions and Officer Protections

Fegley (2020) looks at the part played by police unions in protecting law enforcement officers. The main focus has to do with disciplinary procedures. Unions have been power players in shaping collective bargaining agreements with respect to procedural safeguards for officers facing disciplinary actions. These agreements often include arbitration processes that allow officers to challenge disciplinary decisions, even in cases of misconduct. Aitchison’s (2020) work corroborates Fegley\\\\\\\'s (2020) findings by detailing the history and structure of collective bargaining for law enforcement officers?. Specifically, Aitchison (2020) shows that unions have been leaders in establishing protections that insulate officers from immediate disciplinary actions. These protections raise a complicated issue, though: for one thing, they may be beneficial for officers, but on the other hand they can often frustrate efforts to hold officers accountable, as they complicate the process of swift disciplinary actions in cases of misconduct.

Fegley’s (2020) analysis also looks into how arbitration frequently leads to the reinstatement of officers who were terminated. This has the potential to cause a loss of public confidence in the police force, if the public views the termination is justified. The protective structure can be taken in two ways: it can be taken as a cushion for officers who feel their punishment may be unjust; it can also be taken as a barrier by those who feel punishment is just. In any case, it can act as a hurdle for police departments that try to discipline officers. Aitchison (2020) provides similar insights in terms of how the arbitration process can shield officers from the full consequences of their actions?. The influence of unions thus translates to political power affecting officer discipline and due process rights.

Legal Barriers to Accountability in Use of Force

Garrett and Slobogin (2020) also go into the legal standards that govern the use of force by law enforcement officers. They, too, argue that existing legal frameworks like the qualified immunity doctrine and the objective reasonableness standard set by Graham v. Connor tend to act as barriers from holding officers accountable for excessive use of force. Aitchison (2020) complements this discussion by explaining how legal standards can be interpreted in ways that favor officers, especially if there are internal investigations after the use of force?.

In many cases, internal reviews conducted by police departments lead to findings that align with the legal protections granted to officers (Garrett & Slobogin, 2020). This makes it difficult for victims of excessive force to seek redress. Aitchison (2020) refers to the Garrity and Brady rules, in particular, as examples of cases that complicate disciplinary proceedings when officers are involved in cases of misconduct related to use of force?. Garrett and Slobogin’s (2020) analysis, combined with Aitchison (2020), reveals a system where legal and procedural barriers can become obstacles to officer accountability.

Public Interest and Police Arbitration

Plass (2021) also critiques the arbitration process as it relates to police discipline, by showing that it often prioritizes the interests of officers over the public good. Arbitration can lead to the reinstatement of officers even after severe misconduct, due to arbitral failures, procedural discretion, and the “Supreme Court doctrine that limits the ability of judges to vacate arbitral awards that are repugnant to justice” (Plass, 2021, p. 31). Plass’s (2021) findings support Aitchison’s (2020) analysis of disciplinary standards and the legal and procedural ways that can prevent officers from being held accountable if prosecutors choose to be lenient. Aitchison (2020) emphasizes that binding arbitration laws in many states effectively limit a department’s ability to enforce disciplinary actions. This ends up reinforcing the privileges granted to law enforcement officers through collective bargaining agreements?.

The public interest, as discussed by Plass (2021), is thus sidelined in favor of maintaining officer protections. Arbitration is structured in such a way that it typically involves neutral third parties who can be more sympathetic to officers than to public calls for accountability. Aitchison (2020) also gives examples of how collective bargaining agreements can complicate disciplinary processes, such as when departments are required to follow specific procedural steps that can delay or overturn disciplinary actions?. All of this supports what Plass (2021) shows.

Political Power of Law Enforcement Unions

Robinson and Rushin (2022) also focus on the political influence of law enforcement unions and how this power affects legislation related to officer accountability. Their study of the law enforcement lobby reveals that unions exert pressure on state and local governments to pass laws that protect officers from undue accountability. These efforts are to get statutory protections in place like the peace officer bills of rights, which offers procedural safeguards that are not available to other public employees.

Aitchison (2020) supports these findings with his description of the history of collective bargaining rights and the political power that police unions have when it comes to influencing labor laws?. Aitchison (2020) also discusses how police unions have successfully lobbied for laws to make sure that officers have access to due process rights that are more robust than those available to most public employees. This is justified on account of officers being more under scrutiny than other public employees. Thus, these rights include protections during disciplinary interviews, access to materials developed during investigations, and the ability to appeal punitive actions?. Both Robinson and Rushin (2022), and Aitchison (2020), point out that these political victories are seen as important for police officer protections but that they have also made it difficult for reforms to pass that would make police accountability more stringent.

Personnel Management and Police Misconduct

Schanzenbach (2022) details how personnel management within police departments can be the biggest factor in terms of preventing but also enabling police misconduct. Poor management practices, inadequate training and failure to discipline officers for minor infractions, can all lead to a culture of impunity where more serious misconduct ends up being tolerated (Schanzenbach, 2022). Aitchison (2020) gives an overview of the disciplinary standards that are typical for law enforcement agencies?. However, one challenge in managing police personnel is the interplay of labor laws and disciplinary procedures, which tend to favor officers. Schanzenbach (2022) argues for systemic reform in how police departments handle personnel issues, suggesting that more proactive management could prevent misconduct before it escalates. Aitchison echoes this sentiment by explaining how legal frameworks such as collective bargaining agreements often limit the ability of police departments to address misconduct effectively?. The result is a system where disciplinary standards are difficult to enforce, leading to repeated instances of misconduct by the same officers.

Key Findings

1. Police Unions and Officer Privileges

Source: Fegley, T. (2020). Police unions and officer privileges. The Independent Review, 25(2), 165-186.

Key Findings

· Police unions can secure protections for officers that block or deter immediate disciplinary actions.

· The arbitration process can block or thwart efforts to discipline officers for misconduct.

· Collective bargaining agreements tend to include provisions that make it difficult for police departments to enforce accountability.

2. The Law on Police Use of Force in the United States

Source: Garrett, B., & Slobogin, C. (2020). The law on police use of force in the United States. German Law Journal, 21(8), 1526-1540.

Key Findings

· The standard of \\\\\\\"objective reasonableness\\\\\\\" set by Graham v. Connor is a major hurdle in prosecuting officers for excessive force, which is seen as a good thing by police officers who feel they may be unjustly prosecuted for doing their jobs.

· Qualified immunity provides substantial legal protection to officers, making it difficult for victims of excessive force to seek justice but also for officers to be unduly punished.

· Critics argue that legal reforms are necessary to balance the rights of citizens against the privileges enjoyed by law enforcement officers.

3. Police Arbitration and the Public Interest

Source: Plass, S. A. (2021). Police arbitration and the public interest. Harv. BL Law J., 37, 31.

Key Findings

· Arbitration can be used to reinstate officers who were terminated for misconduct, undermining public trust in law enforcement.

· There is a lack of transparency in the arbitration process, which protects police officers purportedly at the expense of community oversight.

· Reform may be needed to align police arbitration practices with the public interest so that the public can feel confident that police departments can hold officers accountable. However, this raises issues of trust within police departments as to who is going to support them for doing what they have to do, as unpleasant or unfortunate as that may be.

4. The Law Enforcement Lobby

Source: Robinson, Z., & Rushin, S. (2022). The law enforcement lobby. Minn. L. Rev., 107, 1965.

Key Findings

· Law enforcement lobbies have played a big part in passing laws that limit undue police accountability, such as laws that make it difficult to release body camera footage or require long waiting periods before officers can be interviewed after an incident.

· The influence of these lobbies extends to state and local governments, which has led to legislation that prioritizes officer protections over public transparency.

· The political power of police unions has made it challenging for reformers who would otherwise try to push for more police accountability and transparency before the public.

5. Policing the Police: Personnel Management and Police Misconduct

Source: Schanzenbach, M. (2022). Policing the police: personnel management and police misconduct. Vand. L. Rev., 75, 1523.

Key Findings

· Poor personnel management practices include inadequate training or failure to address misconduct early, and these can contribute to widespread issues in police departments.

· More effective personnel management can reduce incidents of police misconduct, but reforms must also address structural issues within the department.

· Legal frameworks governing personnel management in police departments may be a point of failure in terms of accountability, thus allowing for cases of repeated misconduct by officers.

Synthesis and Conclusion

These sources give a good understanding of the legal rights and freedoms, rules governing discipline, due process, and the political dynamics that shape the employment of law enforcement officers. Fegley (2020) highlights the powerful role of police unions in protecting officers, while Garrett & Slobogin (2020) focus on legal barriers to accountability in use-of-force cases. Plass (2021) and Robinson & Rushin (2022) examine the public interest and political dimensions, emphasizing the disconnect between police protections and community trust. Finally, Schanzenbach (2022) ties personnel management directly to issues of misconduct, calling for systemic reform within police departments.