Here's why cops can't be held accountable

St. Paul Mayor Melvin Carter spoke wisely and well at a May 31 briefing where state and local officials updated the public on their newly muscular efforts to control civil unrest in the wake of George Floyd's terrible and world-famous in-custody death.

Carter pleaded with protesters to channel the passions on display on Twin Cities streets in recent days of rage into a crusade for positive change.

"Take that energy," Carter said, "and use it not to destroy our neighborhoods but to destroy the historic culture [of injustice], to destroy the systemic racism, to destroy, in specific, the laws, the legal precedents, the police union contracts — all of the things that make it so difficult to hold someone accountable when a life like George Floyd's is so wrongfully taken."

Carter has certainly set forth an heroic agenda here. To heal and transform the often sorrowful legacy of history is not the work of a day. But politicians often proclaim grand, visionary goals.

What actually made Carter's battle cry an exceptional case of starry-eyed optimism was his nuts-and-bolts call to reform "police union contracts" and dismantle "laws and precedents" that help those unions block accountability.

But by all means, let us dream the impossible dream.

Minneapolis Mayor Jacob Frey seems willing. Welcoming a state investigation of his Police Department, he decried how "for years in Minneapolis, police chiefs and elected officials committed to change have been thwarted by police union protections and laws that severely limit accountability."

What barriers to accountability could the mayors be talking about? Well, one might well wonder how a Minneapolis police officer could possibly suppose that physically abusing a handcuffed arrestee would ever, if discovered, be seen as anything but intolerable misconduct.

Reading a few labor arbitration rulings in police discipline cases might clear up that mystery.

Last October, barely more than half a year before Floyd's death, a fired Minneapolis police officer was reinstated to his job by a state arbitrator. MPD officer Peter Brazeau had beaten a handcuffed, intoxicated man who kicked him, producing what the arbitrator described as "a pool of blood."

Arbitration Ruling by Scott Gillespie on Scribd

The arbitrator agreed with Police Chief Medaria Arradondo that Brazeau had violated policy and shown no remorse. But Brazeau had (somewhat strangely) been returned to duty as a "training officer" and had performed well while his case went through channels following the 2016 beating incident.

A two-week unpaid suspension would be punishment enough, the arbitrator decided.

Any regular reader of this column has endured this kind of story before — and this kind of frustrated harangue. I have been writing about the dysfunctions of police disciplinary processes for roughly 30 years, without the slightest effect.

But this is merely to say that my reform efforts on this front have been about as successful as everyone else's.

State law governing public employment requires every police department in Minnesota, as public employers, to allow all discipline to be appealed to binding arbitration. Arbitrators sometimes uphold discipline (including firings) but it's not uncommon for terminations to be reduced to suspensions and for other discipline to be diminished. Evidence suggests fired cops are reinstated roughly half the time.

Often, as I've noted before, such cases come down to judgment calls about whether an officer has demonstrated that he or she does not possess, or has lost, the exceptional level of self-control and sound judgment we need from police — and which most officers heroically display. Presumably, we appoint police chiefs and elect city officials to make such judgment calls.

But what we have instead is a "broken and flawed" system of second-guessing, in the words of a 2017 lawsuit in which the city of Richfield, backed by the League of Minnesota Cities, the Minnesota Police Chiefs Association and others, pleaded with the courts that the arbitration system should not be applied to "police officers, who by the very nature of their positions, hold the trust and safety of the public in their hands … . [C]ities and their police chiefs must be allowed to fulfill their affirmative duty to protect public safety by [enforcing] rigorous accountability and transparency standards when [officers] use force on the public," the city and police leaders wrote.

A three-judge panel of the state Court of Appeals agreed with the city and its allies in the case at issue, writing that even public employment law "expressly subordinates the [right to] arbitration … to the rights of Minnesota citizens."

But last year the state Supreme Court rejected that reasoning and reaffirmed, as I wrote at the time, "its decades-old doctrine that un-elected, unaccountable arbitrators' rulings are essentially all-powerful in Minnesota — immune from any check or balance based on mere 'general considerations of supposed public interests.' "

Like, for instance, the public interest in not employing cops who think it's OK to abuse handcuffed arrestees?

"Under [Officer Brazeau's] interpretation of the Department's policy," wrote the arbitrator who ruled in his favor last fall, "if an individual uses an act of aggression toward an officer, the officer need not control or measure his response. There is no limit as to how much force, or how long the officer may use force, on that individual … ."

Chief Arradondo's "interpretation" was that anybody who thinks that way should not be on the Minneapolis police force.

The arbitrator disagreed — and in Minnesota today, that's the final word.

And it will be, until state policymakers finally decide to do more than talk about accountability.

Just this week, Rep. Pat Garofalo, R-Farmington, announced legislation that would eliminate binding arbitration not just for police but for all public employees. That sweeping confrontation with all public sector unions at once could be a political bridge too far.

Meanwhile, Attorney General Keith Ellison and Department of Public Safety Commissioner John Harrington led a working group last year on police use of force. Their recommendations, which may also come before the Legislature in a special session, don't address arbitration directly (although they did receive strong testimony decrying the problem). But the recommendations do call for policymakers to "discuss strategies to increase the role" of the state's licensing board for cops — the Peace Officer Standards and Training Board.

The idea seems to be to circumvent arbitration by allowing police chiefs unable to remove problem officers to ask the POST Board to revoke such an officer's license.

Something like that might help. But forgive me for saying that a clarion call to "discuss strategies" doesn't quite seem to match the passions of the moment.

D.J. Tice is at Doug.Tice@startribune.com.