Catherine L. Fisk & L. Song Richardson
85 Geo. Wash. L. Rev. 712
No issue has been more controversial in the discussion of police union
responses to allegations of excessive force than statutory and contractual protections
for officers accused of misconduct, as critics assail such protections
and police unions defend them. For all the public controversy over police unions,
there is relatively little legal scholarship on them. Neither the legal nor
the social science literature on policing and police reform has explored the
opportunities and constraints that labor law offers in thinking about organizational
change. The scholarly deficit has substantial public policy consequences,
as groups ranging from Black Lives Matter to the U.S. Department
of Justice are proposing legal changes that will require the cooperation of police
labor organizations to implement. This Article fills that gap.
Part I explores the structure and functioning of police departments and
the evolution of police unions as a response to a hierarchical and autocratic
command structure. Part II examines how and why police unions have been
obstacles to reform, focusing particularly on union defense of protections for
officers accused of misconduct. Part III describes and analyzes instances in
which cities have implemented reforms to reduce police violence and improve
police-community relations over fifty years. All of them involved the cooperation
of the rank-and-file, and many involved active cooperation with the
union. Part IV proposes mild changes in the law governing police labor relations
to facilitate rank-and-file support of the kinds of transparency, accountability,
and constitutional policing practices that police reformers have been
advocating for at least a generation. We propose a limited form of minority
union bargaining—a reform that has been advocated in other contexts by both
the political left and the political right at various points in recent history—to
create an institutional structure enabling diverse representatives of police rank-and-
file to meet and confer with police management over policing practices.
