In the chaos of 1960s Detroit, a fledgling police union laid the groundwork for a system that, to this day, constrains discipline for officers accused of misconduct.
It took Portland, Oregon, almost US$1 million in legal fees, efforts by two mayors and a police chief, and years of battle with the police union to defend the firing of Officer Ron Frashour — only to have to bring him back. Today, the veteran white officer, who shot an unarmed black man in the back a decade ago, is still on the force.
Sam Adams, the former mayor of Portland, said the frustrated disciplinary effort showed "how little control we had" over the police. "This was as bad a part of government as I'd ever seen. The government gets to kill someone and get away with it."
After the death of George Floyd at the hands of Minneapolis officers in May spurred huge protests and calls for a nationwide reset on law enforcement, police departments are facing new state laws, ballot proposals and procedures to rein in abusive officers. Portland and other cities have hired new chiefs and are strengthening civilian oversight. Some municipal leaders have responded faster than ever to high-profile allegations of misconduct: Since May, nearly 40 officers have been fired for use of force or racist behaviour.
But any significant changes are likely to require dismantling deeply ingrained systems that shield officers from scrutiny, make it difficult to remove them and portend roadblocks for reform efforts, according to an examination by The New York Times. For this article, reporters reviewed hundreds of arbitration decisions, court cases and police contracts stretching back decades, and interviewed more than 150 former chiefs and officers, law enforcement experts and civilian oversight board members.
While the Black Lives Matter protests this year have aimed to address police violence against people of color, another wave of protests a half-century ago was exploited to gain the protections that now often allow officers accused of excessive force to avoid discipline.
That effort took off in Detroit, partly as a backlash to the civil rights movement of the 1960s, when police officers around the country — who at times acted as instruments of suppression for political officials or were accused of brutality in quelling unrest — felt vulnerable to citizen complaints.
Newly formed police unions leveraged fears of lawlessness and an era of high crime to win disciplinary constraints, often far beyond those of other public employees. Over 50 years, these protections, expanded in contracts and laws, have built a robust system for law enforcement officers. As a result, critics said, officers empowered to protect the public instead were protected from the public.
In many places, the union contract became the ultimate word. The contract overrode the city charter in Detroit. The contract can beat state law in Illinois. The contract, for years, has stalled a federal consent decree in Seattle.
Many police contracts and state laws allow officers to appeal disciplinary cases to an arbitrator or a review board, giving them final say. Arbitrators reinstate fired officers about half the time, according to separate reviews of samplings of cases by The Times and a law professor. Some arbitrators referred to termination as "economic capital punishment" or "economic murder".
Disciplinary cases often fall apart because of contractual or legal standards that departments must show a record of comparable discipline: A past decision not to fire makes it harder to fire anyone else.
Because many departments don't disclose disciplinary action for police misconduct and there is no public centralised record-keeping system, it is difficult to determine how many cases are pursued against officers, and the outcomes.
And police chiefs acknowledge that they don't always seek the discipline they think is warranted. That can lead to problem officers remaining on the streets. Rather than gamble on arbitration, some chiefs allow officers to quit or opt for financial settlements, which can enable them to move on to other departments with seemingly unblemished records.
"You would pay them to leave," said Roger Peterson, the former police chief in Rochester, Minnesota, who said he had negotiated such payments for about a dozen officers during his 19-year tenure. "It stunk."
Union leaders defend the disciplinary protections, saying that police work is difficult, and that rules help ensure that chiefs don't impose discipline because of political pressure or personal biases. Public outcry, they said, can unfairly influence a city's decision to fire an officer accused of excessive force. Will Aitchison, the union lawyer who represented Frashour in Portland, said the arbitration process protected officers like him who were fired because of "political expediency".
"Nobody wants a bad cop," said Brian Marvel, a San Diego police officer and the president of California's largest law enforcement labour organisation. "Good cops want bad cops out as bad as anybody else. But we still have to protect the due-process rights of all our members."
Even so, many leaders argue that the protections handcuff them. Eric Melancon, chief of staff to the Baltimore police commissioner, drew a direct line between the laws from decades ago and the difficulties today.
"If George Floyd were to happen in Baltimore city," he told a state policing commission, "we would not be able to terminate those officers."
The finest print
In the summer of 1967, civil unrest simmered in more than 150 cities nationwide. Detroit caught fire.
Black residents saw the almost all-white police force as an occupying army. Police cruisers armed with tear gas and machine guns patrolled black neighbourhoods. Many white officers considered black people "a privileged minority" ready to use violence to overtake white residents, a 1967 survey found.
A police raid that July on an unlicensed bar sparked riots, largely between black residents and police backed by federal troops. One black officer said white officers targeted even him. "If officers shot at me, a fellow officer, what were they going to do to other people?" recalled Isaiah McKinnon, who would become police chief in the 1990s. All told, 43 people died.
The riots — among the worst in the nation's history — gave the city's fledgling police union leverage. The Detroit Police Officers Association was negotiating the country's first comprehensive police contract, seeking a raise and a new disciplinary process to replace one it considered arbitrary. In what became a blueprint for union negotiations across the country, police officers promised to restore order but demanded something in return.
"They were really grasping at anything that sounded like a persuasive argument for their target audience," said Samuel Walker of the University of Nebraska at Omaha, who studies police accountability. "Their audience was white voters who were afraid of crime."
Police unions were relatively new. After an executive order in 1962 allowed federal workers to collectively bargain, state and local governments followed suit for their workers. Longtime police social associations became unions. Some affiliated with national organisations like the Fraternal Order of Police; Detroit's and many others remained independent.
The police also felt threatened by recent Supreme Court decisions protecting criminal suspects. The Detroit union repeatedly condemned the court's 1966 Miranda decision, which required officers to inform people in custody of their rights before interrogations. In response, the police there and elsewhere pushed for an officer "bill of rights".
Unlike other labour groups, police unions expanded beyond the labour-friendly left for political allies. The 1967 national convention of the Fraternal Order of Police featured George Wallace, the segregationist who would run the next year for president on a platform of white grievance. "If the police of this country could run it for about two years, then it would be safe to walk in the streets," he said. His speech got two standing ovations.
Victories came quickest in cities, like Detroit, where fears of crime combined with union-friendly politics. A month after the riots there, the union won big. The city agreed to a huge pay increase, making Detroit officers among the highest-paid in the country. The contract also said the police commissioner no longer had the ultimate say over discipline; an independent arbitrator would. Arbitration would spread nationally.
Throughout the 1970s, unions changed the disciplinary process, city by city, contract by contract. Some provisions mirrored the rights of criminal defendants: for instance, allowing officers to see any evidence against them. Other measures went much further. Officers under review were given 24 or 48 hours — or up to 30 days in Louisiana — before investigators could interview them, which critics complained allowed errant cops to concoct a defense for any accusation. Many cities banned anonymous complaints. Reprimands could be erased from an officer's file after a few years.
Many experts and public officials said cities failed to anticipate the long-term implications of such provisions. "It felt a lot of times like Elmer Fudd negotiated for the city of Portland and the police union brought Perry Mason," said Jo Ann Hardesty, a city commissioner, one of the city's most vocal advocates of police reform.
In 1973, Maryland lawmakers adopted the country's first bill of rights for officers. Every officer statewide was given the right to appeal discipline to a local board, regardless of a city's wishes.
A 1981 analysis of nearly every police union contract in cities of more than 100,000 found that about 73 per cent of contracts required that discipline be settled through binding arbitration. A bill of rights for officers appeared in more than half, including Portland's.
Sheryl Sculley, the San Antonio city manager for 14 years, said the city frequently lost cases at arbitration because, under contract provisions and laws negotiated decades ago, some records of officer reprimands weren't admissible if older than two years. That meant arbitrators could often only consider recent discipline.
"The arbitrator makes the decision that this was an officer's one-time mistake," she said. "Well, no. But we couldn't present the full picture because the laws didn't allow us to."
'This person is back'
In 2017, Zachary Rosen, a white officer in Columbus, Ohio, kicked an armed black suspect on the ground as another officer tried to handcuff him. Rosen was eventually fired for using "unreasonable" force.
Backed by his union, he appealed to an arbitrator. Under the contract, the Columbus Police Department needed to prove that it had "just cause" to fire him. Arbitrators typically consider a set of questions, including: Was the officer disciplined similarly to other department officers who behaved similarly? And did the officer receive warnings to correct poor behaviour before being fired?
The arbitrator noted in his 2018 decision that video footage showed the suspect's "head severely bouncing off the concrete due to the strength, force and leverage" of the kick. But he also noted the officer's nearly seven years of "unblemished" service. In addition, he wrote, no one else in the department during the current chief's tenure had been terminated for excessive force.
Instead, Rosen was suspended for three days and given back pay. He now works a desk job, reviewing misdemeanours. In a statement, the union lawyer who represented him said the details of the case had been oversimplified. "A particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," she wrote.
More than a dozen current and former chiefs told The Times they were troubled that an arbitrator or review panel decided whether a fired police officer remained off the force. Some felt chained to past practices and unable to fire officers for improper behaviour if prior chiefs had set more tolerant standards.
Even though relatively few officers in a department go through arbitration, chiefs and critics say those cases affect disciplinary decisions, morale and officer assignments. Chiefs and reform advocates say that even one high-profile reversal can send a devastating message to the public — that a chief doesn't control discipline, and that seemingly dangerous behaviour will be tolerated.
"It looks bad," said Gil Kerlikowske, a former police chief in Seattle and three other cities. "The department has fired someone. And then this person is back."
A Times review of about 200 recent arbitration decisions compiled from Bloomberg Law, Nexis and Minnesota, one of the few states that make decisions readily accessible, shows that since 2010, arbitrators have reinstated about half of fired officers. Stephen Rushin, a law professor at Loyola University Chicago, found in an analysis of more than 600 arbitration decisions from the past 15 years that arbitrators had reduced discipline or ordered officers to be rehired about half the time.
Union leaders faulted police administrators for the reversals, often saying they disciplined without good reason or failed to properly document past discipline.
Arbitration "balances the scales" against biased or politically driven decisions, said Daryl Turner, who as president of the Portland police union led the fight against Frashour's firing. Turner said discipline should correct behaviour, not punish officers.
"I don't understand why you wouldn't remediate somebody," he said. "We're making sure it doesn't happen a second time — or if it does, that officer can't say, 'I wasn't educated or trained correctly on that policy.'"
Arbitrators echoed the idea that discipline should correct mistakes. And the law gives wide latitude to officers' decisions to use force, often deferring to their judgment on what reasonably constitutes a threat. But arbitrators acknowledged that some cases they see are so egregious that termination is the only option.
The 83-page contract between Columbus and its police union shows how arbitration works there, similar to many other cities. The arbitrator, usually a lawyer, is picked from a short list of names submitted by the Federal Mediation and Conciliation Service, a government agency that tries to prevent labour disputes. The city and the union each strike a name until one remains.
"Who do you end up with?" asked Daniel Oates, the former police chief in Miami Beach, Florida; Aurora, Colorado; and Ann Arbor, Michigan. "The guy who's much more likely to have a middle-of-the-road decision in a termination. What's the middle-of-the-road decision in a termination? Well, it ain't a termination."
Police chiefs and city officials often try to negotiate discipline before imposing it, to find a compromise the union will support. Failing that, they sometimes cut a deal.
Portland fired Sgt Gregg Lewis in 2018 over a racist comment he had made nearly a year earlier at roll call: something along the lines of, "If you come across a black person, just shoot them," according to his termination letter. The comment came three days after a Portland police officer fatally shot a black teenager; colleagues complained about Lewis to a superior. The officer, who appealed, later said he was being sarcastic.
Lewis, who did not respond to requests for comment, had little prior discipline and no documented history of such remarks. Portland police disciplinary guidelines said inflammatory language called for, at most, a three-week suspension without pay. So the city opted to pay him about US$100,000 in back pay to retire.
"This is an egregious case, but the chance that this will go to an arbitrator and then be overturned, I believe, is too great," Portland's mayor, Ted Wheeler, said at the time.
A lack of discipline
In November 2015, Stanley Kropik, a longtime Detroit police officer, spotted an orange Dodge Charger he suspected of eluding him during a traffic stop 11 days earlier. Kropik again tried to pull the Charger over, but it took off.
According to policy, that wasn't enough to justify a pursuit. Regardless, the officer chased the Charger, calling for backup and falsely claiming he had seen the driver trying to conceal something, records show. Kropik followed the Charger onto sidewalks, through red lights and onto the freeway, exceeding 17hm/h. Other officers joined in.
A supervisor called the chase off, just before the Charger appeared to hit a car on the freeway. At that point, Kropik told another officer about the accident and started laughing, records show. He said he wanted the Charger's driver "bad," referring to him as an expletive.
Other officers involved in the chase then spotted the Charger and pursued it without permission. The Charger crashed into another car, killing its driver, Jeff Gill, and leaving the suspect with minor injuries.
The next day, Chief James Craig said the pursuit did not appear justified and he was looking into possible policy breaches. Ten months later, an internal affairs report was damning: The conduct of Kropik and others had "placed hundreds of lives in danger".
"Mr Gill is dead because Officer Kropik violated Detroit Police Department policy and he lied in order to do so," the investigation found. "Officer Kropik's actions were unprofessional, irresponsible and displayed a total disregard for life."
In October 2017 — almost two years after the chase — he was charged with a felony, misconduct in office.
The chief asked the city's police review board, a civilian group intended to mete out discipline, to suspend Kropik without pay. But the board did not take any action. A judge soon dismissed the criminal charge. Kropik was briefly suspended with pay, then was back on patrol. Craig, who declined an interview request, said nothing publicly about the outcome. Kropik said the description of the chase was inaccurate, but did not provide details, and noted that the charge had been dismissed. He declined to comment further.
Higher-profile incidents nationwide have had similar results, according to a Times review of about 100 controversial killings by police from 2013 through 2019, including Eric Garner in New York, Michael Brown in Ferguson, Missouri, and Freddie Gray in Baltimore. Many led to large payouts to families of the dead — a signal of improper conduct by officers, even as departments routinely denied wrongdoing.
In a majority of cases, discipline was either not imposed or not publicly disclosed, with some departments declining to release records or answer basic questions. Some officers were terminated. Many appealed. A few were paid to leave.
While Detroit has largely been exempt from the national glare of a brutality case since the 1990s, a 2018 lawsuit against the city outlined numerous cases of abuse by the police department. It claimed that administrators failed to flag troubled officers under an early warning system put in place by a monitoring agreement with the federal government.
The department, the lawsuit alleged, had "turned a blind eye to incidents of brutality, patterns of abuse, refusing to punish, discipline and/or terminate offenders". As a result, it claimed, the city was "passively encouraging a culture of silence in the face of abuse perpetrated upon citizens." The suit, still pending, was filed by a man who suffered severe brain injuries after an off-duty police commander shoved him to a concrete floor.
Even Craig last year acknowledged problems with how the department handled discipline cases and complaints against officers. He told The Detroit News he would require that cases be resolved faster.
"Cases were falling into a black hole," he said, "and arbitrators were ruling against the department because the cases weren't being investigated in a timely manner."
Making change
After the killing of Floyd, protests and calls for police reform gripped the nation. In the months that followed, 42 of the country's 50 largest cities changed police policies or adopted some new kind of oversight, Walker of the University of Nebraska at Omaha said.
Portland is a case study in what happened nationally. Demonstrations lasted months. Police sometimes used tear gas and batons to control protests. Activists criticised the Portland Police Bureau for what they said was excessive force — and a history of brutality against black residents.
As the protests raged, Portland's police chief, a white woman, made an unusual decision: She asked a top lieutenant, Chuck Lovell, a black man, to take her job, saying the city needed him to help it heal.
As a new leader in a tough moment, Lovell explained in an interview how he was expected to "magically" step in and "fix things that have been problems for many, many, many years or decades in an instant."
"It just doesn't work that way," he said.
Portland has seen more changes than most places: In addition to the new chief, the city cut its police budget, eliminating the gun-violence reduction team. In November, Portland was one of several major cities that overwhelmingly passed police reform ballot measures — including a new civilian oversight board with the final word on discipline — even as police unions opposed them.
In June, Oregon lawmakers adopted a package of laws, including one restricting the power of arbitrators. Now police departments and unions are supposed to agree on discipline guidelines — which arbitrators must follow, rather than basing decisions on earlier cases.
But that law wouldn't have altered the outcome of the disciplinary case against Frashour, because the arbitrator found no underlying policy violation in the shooting of Aaron Campbell, which still hangs over Portland a decade later.
At the time of the shooting, Frashour, a policeman for nine years, had twice received counselling for poor judgment in using force, records show. In one case, he had pulled over the wrong vehicle being sought for reckless driving, leading to "physical damage and injury," records show. In the other, he had deployed his Taser without warning on a man filming a police search. A jury in a civil case found him and another officer liable for excessive force, awarding the man more than US$200,000. Frashour declined to comment.
On the day in January 2010 when Campbell was killed, police had been called for a welfare check on the 25-year-old, who was distraught over the death that morning of his younger brother of heart and kidney failure. He was known to have a gun. He had earlier threatened to commit suicide by police. And he had initially holed up in his former girlfriend's apartment with three children.
Frashour, acting as a sniper, watched the children walk out of the apartment. Then he saw Campbell come out, walking backward, his hands behind his head.
Another officer fired six beanbag rounds at Campbell's back after he failed to obey orders to raise his hands higher. Campbell reached for his back. Some witnesses said he might have been checking to see where he had been hit; Frashour told investigators he thought the man was reaching for a weapon. He shot Campbell, who was unarmed.
Grand jurors, after concluding that they could not indict the officer, demanded that the police department make systemic changes, saying that "something must be done to correct this".
The city paid a US$1.2 million settlement to Campbell's family. Besides terminating Frashour, officials suspended the officer who fired the beanbags and two supervisors for two weeks without pay.
Despite all the Portland officials who wanted Frashour to be fired, the arbitrator — hand-picked by the city — sided with the union, as did the state agency that handles police certification. The arbitrator said a reasonable officer could have concluded that Campbell "made motions that appeared to look like he was reaching for a gun".
Campbell's mother, Marva Davis, said she felt horrible when she learned that Frashour was back on the force. She lost her two sons in one day.
"It was murder," she said. "Across the country, the laws need to change. All the police officer has to say is they fear for their life. And then they're justified in shooting someone in the back."
Written by: Kim Barker, Michael H. Keller and Steve Eder
Photographs by: Mason Trinca and Michelle V. Agins
© 2020 THE NEW YORK TIMES
