Union clout is one reason holding cops accountable is tough

The weeks and months just ahead could bring notable developments in Minnesota's ongoing efforts to better police its police officers — to bring justice both to cops accused of grave wrongdoing and to the victims of their mistakes or misdeeds, while also effectively managing and disciplining officers in their everyday duties.

Meanwhile, a provocative new piece of research suggests one reason that it's so challenging for public officials to deal with those few cops who fall short of the high standards of courage and judgment that the vast majority of officers uphold.

No doubt the highest-profile suspense surrounds Hennepin County Attorney Mike Freeman's looming decision in the Justine Ruszczyk Damond tragedy. Freeman's deliberations over potential criminal charges against Minneapolis officer Mohamed Noor in the July 15, 2017, shooting of Damond have become both prolonged and confusing.

In December, Freeman's ill-considered and secretly recorded criticism of investigators raised many questions. His more recent decision to employ a grand jury to hear testimony, while saying he will nonetheless keep his pledge to personally make the charging decision, adds further uncertainty about the quality of the evidence he has to work with.

In the background stand memories of last summer's trial and acquittal of St. Anthony officer Jeronimo Yanez in the death of Philando Castile. Ramsey County Attorney John Choi has largely escaped criticism for bringing weighty charges against a cop only to prove unable to make his case. But the episode certainly demonstrated how difficult it is to convict officers — and makes it easy to understand why the pressure is strong on Freeman to get the charging decision right in Noor's case.

Meanwhile, it's also worth watching our two new-generation mayors in Minnesota's biggest cities, each of whom has made a priority of improving police-community relations. St. Paul's Melvin Carter has quickly endorsed revisions in the department's use-of-force policies. In Minneapolis, Jacob Frey has called for hiring more cops, while also calling for a new start in his inaugural address, both from officers and the community: "We must expect more accountability from police but … also … from ourselves," he said.

At the state level, just last month, the Peace Officer Standards and Training Board began the process of toughening its licensing rules, expanding the range of offenses that would cause the agency to review the license of a Minnesota cop. That step came in response to a Star Tribune investigation last fall showing that hundreds of officers over the past 20 years have faced no scrutiny from the state board despite being convicted of serious offenses. Some critics call the board's new steps inadequate, and the issue of state oversight could arise at the Legislature in the session that begins this month.

But potentially the most far-reaching change in the realities surrounding police accountability could emerge from a more obscure controversy. In January, the Minnesota Court of Appeals heard arguments in the case of fired Richfield officer Nate Kinsey.

In an unusual legal action, the city of Richfield has been joined by the League of Minnesota Cities and the Minnesota Association of Police Chiefs in what amounts to a frontal assault on the near-absolute power wielded over police discipline by the labor-arbitration system in Minnesota.

Kinsey was fired in 2016 for striking a teenager and failing to report the incident until a video of it surfaced on social media. The city has claimed that Kinsey had been counseled about similar issues before. Kinsey and his union fought the firing all the way to binding arbitration, under grievance rules common in union contracts, including police union contracts. The arbitrator ordered Kinsey reinstated.

Richfield and its co-litigants are appealing that decision, insisting that a rarely invoked "public policy exception" should prevent arbitrators from "second-guessing" the determinations of police department leaders, empowered by public officials, that a particular cop lacks the judgment, skill or character needed to serve in a position so critical to the safety of citizens.

"[C]itizens have elected public officials to make these important policy decisions," says the brief for the league and the police chiefs, "and this Court should not allow arbitrators to substitute their judgment …"

Yet as I've argued here a few times before, arbitrators regularly do just that — though of course they uphold discipline, including termination, in other cases. But given the stakes involved in ensuring that only the most exceptionally able and self-possessed officers patrol our streets, given the level of public concern surrounding police misconduct, it's possible to question whether the disciplinary system as currently structured gives those in charge of supervising police the authority they need.

All that said, Richfield's suit remains a long shot. Minnesota courts have a long history of treating labor arbitration decisions as virtually inviolate. If the Appeals Court continues that tradition, reforming disciplinary processes will remain up to policymakers, including those who negotiate union contracts.

All concerned with these matters may want to consider an unusual new piece of research from scholars at the University of Chicago Law School. In "The Effect of Collective Bargaining Rights on Law Enforcement: Evidence from Florida," Richard McAdams, John Rappaport and Dhammikka Dharmapala studied what happened after a 2003 Florida Supreme Court ruling in effect unionized a group of law enforcement agencies that had previously been nonunion.

Simply put, they found that the level of misconduct complaints rose substantially (by 27 percent) in the newly unionized agencies, a result they attribute in significant part to the various protections against discipline that collective bargaining provides, including arbitration rights.

These results are described as preliminary, and economist Tyler Cowen — whose Marginal Revolution blog tipped me to the study — argues that the effect seems "implausibly large."

Still, at minimum this research is another reminder that the influence of police unions, not least their political clout, is among the many complications that will continue to make it no simple task to "expect more accountability from police."

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