How union, Supreme Court shield Minneapolis cops
In Minneapolis, officers have successfully used the qualified immunity doctrine to win civil lawsuits against them in federal courts
Long before the death of George Floyd last week, efforts to overhaul the way policing is done in Minneapolis repeatedly fizzled in the face of a powerful 800-member union that championed military-style police tactics.
The union's labor contract with the city is a formidable roadblock to citizens seeking disciplinary action after aggressive encounters with police. Led by Lieutenant Bob Kroll, the union's vocal and hard-charging president for five years, officers rarely face sanctions, Reuters has found.
A Reuters analysis of complaints against Minneapolis police officers from the past eight years shows that 9 of every 10 accusations of misconduct were resolved without punishment or intervention aimed at changing an officer's behavior. The analysis covers about 3,000 complaints during that period; five officers were fired.
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The Minneapolis union contract is not unusual. Dozens of other contracts across the United States contain provisions that stymie efforts to hold cops accountable for violence and other alleged abuses, a 2017 Reuters investigation found. The news agency examined contracts in 82 cities for that article and found that 46 required departments to erase disciplinary records, some after just six months. The absence of a paper trail makes firing officers with a history of abuses difficult, lawyers and police chiefs say.
Compounding the challenge for citizens seeking justice: a US legal doctrine called qualified immunity. A Reuters investigation last month found that the concept, created and reinforced in a series of US Supreme Court rulings, increasingly shields from civil liability officers who are accused of using excessive force.
"You have immune police officers who are beyond punishment because of their union contract as well as constitutional law," said Gloria Browne-Marshall, a professor at John Jay College of Criminal Justice in New York.
"That combination leads to an arrogance of a police officer who can kill a man in broad daylight while being taped and believe he can get away with it," said Browne-Marshall, who teaches constitutional law. "When there are no consequences, that's when people act with impunity."
In Minneapolis, officers have successfully used the qualified immunity doctrine to win civil lawsuits against them in federal courts. It is difficult to identify all excessive force lawsuits in federal court records, but Reuters found 28 such cases from 2006 through 2018 in which Minneapolis police officers raised a qualified immunity defense. Judges sided with the officers in 15 of those, ending the cases without a jury trial.
The union contract and the qualified immunity doctrine play a role in emboldening some officers to commit abuses, legal scholars say, but they don't always provide a shield in cases that trigger criminal charges or unleash national media scrutiny — as has now happened in Minneapolis.
CRIMINAL CHARGES
All four officers present in the death of Floyd, a 46-year-old black man, have been criminally charged in the case. The state's attorney general on Wednesday charged Derek Chauvin with second-degree murder and Tou Thao, J. Alexander Kueng and Thomas Lane with aiding and abetting second-degree murder.
The county attorney had charged Chauvin on Friday with third-degree murder and manslaughter. The state's attorney general, Keith Ellison, said Wednesday that he and the prosecutor now believe the evidence warrants the stronger charge.
Graphic videos show Chauvin, who is white, kneeling on Floyd's neck for more than eight minutes as the unarmed man gasped for breath and groaned, "Please, I can't breathe."
Kueng and Lane also restrained Floyd, while Thao stood nearby.
Chauvin was jailed Friday, and the other three were booked Wednesday. All four officers were fired soon after the incident.
In a letter to union members on Monday, Federation president Kroll wrote that he was working with the union's labor attorneys to get each of the officers reinstated.
"They were terminated without due process," Kroll wrote.
WARRIOR-STYLE POLICING
Since Floyd's death, the usually outspoken Kroll has said little in public. He did not respond to interview requests from Reuters. In Monday's letter, he criticized elected leaders for their handling of widespread protests in the wake of Floyd's death. He praised the city's police officers for their response to "the largest scale riot Minneapolis has ever seen" and characterized the unrest as a "terrorist movement" that has been building for years.
That quickly drew blowback from city leaders. Minneapolis Mayor Jacob Frey tweeted: "For a man who complains so frequently about a lack of community trust and support for the police department, Bob Kroll remains shockingly indifferent to his role in undermining that trust and support."
Some Minnesota labor unions called for Kroll's resignation. Among them: the AFL-CIO, AFSCME, and Education Minnesota. In addition, the board of the Minneapolis Public Schools unanimously voted Tuesday to terminate its $1.1 million contract with the Minneapolis Police Department in response to Floyd's death. The department had provided officers to patrol schools.
Kroll, who became union president in 2015, has locked horns with police chiefs and mayors past and present. A key point of contention: Kroll's backing of so-called warrior-style policing, which conditions officers to view all encounters with residents as inherently dangerous. After Frey stopped the department's use of such training last year, Kroll announced the union would make the training free for any officer who wanted it.
"The culture is that when they're coming into their jobs to police, it's like they're going to a war zone," said Joshua Williams, a human rights attorney in Minneapolis. "That's the mentality — this is not their community."
DISCIPLINARY HURDLES
The long-running antagonism between the police union and the community has hamstrung efforts by Minneapolis elected officials and reform-minded department leaders to change that mentality, one former chief says.
Janeé Harteau, Minneapolis police chief from 2012 to 2017, said arbitration rulings and union grievances that reversed disciplinary actions made it difficult to create a culture of accountability in the department.
Among the contract provisions that impede efforts to discipline abusive cops is one that forbids the department from including allegations of misconduct in an officer's personnel file unless the accusations result in discipline. That means investigators cannot consider an officer's history of complaints while probing a new allegation.
During investigations into misconduct complaints, the contract grants officers concessions that are not afforded to civilians suspected of wrongdoing. Officers are entitled to a written summation of the accusation and events, and they are given as long as two days to consider that information and to consult with a union representative before they can be called to give a statement to investigators.
Such "cooling off" periods are typical of police union contracts across the country, said Samuel Sinyangwe, a policy analyst, and they allow officers to "essentially get their facts right" before talking to the department's internal investigators.
Some city officials say the very structure of the Minneapolis police union creates ethical concerns during the disciplinary process. Supervisors, who are in charge of discipline, are part of the same union that seeks to protect accused officers. Mayor Frey has sought to end this arrangement.
Even when officers are fired for misconduct, the union contract allows them to petition an arbitrator for their job back. Should the four officers in the Floyd case be found not guilty in criminal court, they could seek reinstatement under the contract.
Taxpayers often help pay to defend officers accused of misconduct, even in wrongful death. That is because the contract requires the city to provide legal representation to defend against job-related charges.
A FRUSTRATED CHIEF
In an interview, Harteau, the city's first female chief and its first openly gay chief, cited particular frustration with how long it took to get one Minneapolis police officer with a long history of citizen complaints off the force.
In 2016, she fired Officer Blayne Lehner for violating the department's use of force policy after video showed him repeatedly throwing a woman to the ground while responding to a domestic disturbance. Over his 18-year career, he had accumulated more than 30 complaints. An arbitrator, concluding that Lehner's use of force was not "substantially inappropriate," overturned the chief's decision and reduced the sanction to a 40-hour suspension without pay.
Lehner stayed on the force for three more years, until he was fired last year after another accusation of excessive force. The same arbitrator, Stephen Befort, upheld the termination.
"These cases are difficult and every arbitrator I know agonizes over the appropriate outcome," Befort told Reuters this week.
Lehner did not respond to a request for comment. In arbitration filings during the 2016 case, the union said his use of force was "measured in its severity" and that "Lehner's long and good work should be treated as a mitigating factor."
Jim Pasco, executive director of the Fraternal Order of Police, the nation's largest law enforcement union, said it's easy to blame union contracts when clashes between police and civilians spark public outrage. But cities have a role in shaping those contracts, too.
"It's become a blame game," Pasco said. "The thing that critics never say is that contracts aren't forced down the throats of anyone. They are negotiated."
Police unions do not "recruit, screen or supervise officers," he said, suggesting that low hiring standards, inadequate training and lack of supervision by top management undermine the quality of police forces. "Not everyone is suited to be a police officer," Pasco said.
The FOP represents more than 2,000 law enforcement agencies, but it does not represent the Minneapolis Police Department, which has its own union.
BLUE WALL OF SILENCE
Harteau did have some successes. She began training to help officers recognize implicit biases, and in 2016, she rolled out the department's body camera program, despite fierce opposition from the union.
She said she met resistance "at just about every turn" from the police federation. She said Floyd's death shows how the culture among Minneapolis rank-and-file discourages intervening when a colleague is out of line.
"I don't believe we hire bad cops," former chief Harteau said. "I think events occur and we let things go unchecked."
"The union's perspective is we need to support the cops no matter what," she said. "I support good work, but we cannot support or condone those that do not do a good job or act consistent with our core beliefs and values."
Kroll voiced his views on officer conduct following a police shooting in 2015. During a meeting, he told the legal director of the American Civil Liberties Union of Minnesota that he "viewed policing and complaints like you view a basketball game, in that if you're not getting any fouls you aren't playing hard enough."
ACCUSATIONS OF RACISM
Kroll has himself been the subject of 10 misconduct complaints since 2013, police records show. The records don't disclose the allegations against him. None of the complaints resulted in discipline; one remains open.
He also was mentioned in a 2007 discrimination lawsuit filed against the department by five black officers. Among the plaintiffs: Medaria Arradondo, who was then a lieutenant in the force and is now the chief, having succeeded Harteau.
In court filings, Arradondo and his fellow officers alleged that the Minneapolis police force had "a history of tolerating racist and discriminatory remarks by its white police officers." The suit described an incident in 1992 in which every African-American officer received a hate letter through the interoffice mail that threatened their lives. The letters were signed "KKK," the suit said.
The lawsuit specifically called out Kroll. It alleged that Kroll referred to Keith Ellison, then a US congressman, as a "terrorist." Ellison, who is black and Muslim, became the state's attorney general in 2019 and is now helping to prosecute the four officers involved in the Floyd case. The suit also alleged Kroll wore "a motorcycle jacket with a 'White Power' badge sewn onto it."
The police chief at the time sent an email to all employees denouncing the alleged comments, and Kroll told the St. Paul Pioneer Press that he thought Arradondo and the four other officers were on a fishing expedition. "Ever hear the phrase 'throw a lot against a wall and hope something sticks?'" he said then.
The suit was settled in 2009 for $740,000.
Arradondo, who became chief in 2017, has sought to stop at least one policing practice that disproportionately affects black residents. He ended low-level marijuana stings after the Hennepin County public defender found that almost every arrestee was black. On Sunday night, Arradondo said on CNN that Floyd's killing "was a violation of humanity."
In the wake of Floyd's death at the hands of a white officer, Minnesota Governor Tim Walz announced Tuesday that the state Department of Human Rights would begin a civil rights investigation into Minneapolis Police Department policies and practices over the last 10 years. Its mission: to determine if the department "has engaged in systemic discriminatory practices towards people of color and ensure any such practices are stopped."
A RARE SPLIT
As union president, Kroll has also clashed with the Hennepin County prosecutor. In 2018, Kroll defended officers who refused to be interviewed for the county attorney's 2018 investigation into the death of a 40-year-old white woman shot by a police officer in the alley behind her home.
The woman, Justine Damond, was barefoot and in her pajamas. The prosecutor, who eventually charged officer Mohamed Noor with murder, had to convene a grand jury and subpoena the officers to get their testimony. Noor, who pleaded not guilty to all charges, was convicted of third-degree murder and manslaughter, and was sentenced to 12-1/2 years in prison.
The incident marked a rare split between prosecutors and police in the United States, who typically work closely in pursuing cases. The prosecutor in the Noor case, Hennepin County Attorney Michael Freeman, is now involved in the prosecution of the four officers involved in Floyd's death. He declined to comment for this story, but in a 2018 statement to the media, he said he was left with no choice but to subpoena the officers in the Noor investigation.
Kroll defended the position of the officers in the Noor case, saying at the time that they were acting under the terms of the union contract. The contract, which remains in effect, specifies that police statements to investigators are voluntary and "made at the discretion of the officer." In an interview with a local radio station in 2018, Kroll said it was unfair to say the police had not cooperated.
"The thing is, they were asked to come in for a voluntary statement, and not volunteering does not mean not cooperating," he said.
