23 June 2020

It’s time to defund America’s police (unions)

By Morgan Schondelmeier

The horrific death of George Floyd has shone a spotlight on police brutality in America. For years there has been a powerful, underlying force which has enabled officers to escape accountability following police brutality. That force is the police unions. Like other unions, they exist to protect the rights and wellbeing of its members; they negotiate budgets, pay and working conditions.

But this union does so much more.

Police unions are responsible for defending their members from and during prosecution. They lobby local and federal governments regularly for more funding, more weapons, and for ‘police-first’ legislation. They make it incredibly hard to fire police officers accused of wrongdoing, often pawning off officers to other jurisdictions to avoid a trail of accountability. They lobby against keeping records of use of force during police activity.

They advocate for qualified immunity, the legal loophole that allows cops to avoid being sued by members of the public following police brutality. It states that unless it can be proven that the police violated the exact same statute as described in the Constitution or in previous examples of a successfully prosecuted case, there can be no recourse for litigation, resulting in a chicken or egg paradox to find a precedent.

This creates a very specific and narrow set of instances where a police officer can be sued – it must be a specific use of force, in identical circumstances, against comparable victims. And because it is so narrow, many lawyers won’t take civil cases because they know they will not succeed. Therefore cases do not get far enough to create the previous examples of successfully prosecuted cases which future litigation will rely on. So again, a vicious cycle of unaccountability.

Unions also pay campaign contributions to sympathetic public prosecutors and district attorneys – the very people responsible for legal proceedings against officers. In all of these ways, unions are responsible for creating a system in which police officers are above the very laws which they are expected to enforce and unaccountable to the people they are intending to serve.

The call of ‘law and order’ has echoed across the United States for decades. It appeals to the public’s basic sense of self-preservation and desire for a peaceful life. But does ‘law and order’ mean anything if those responsible for enforcing such a doctrine don’t abide by its principles or even effectively achieve it?

And how did this go unchallenged for so long? Because of the problem of ‘diffuse costs vs concentrated benefits’ as articulated by Mancur Olson in his 1965 book, The Logic of Collective Action: Public Goods and the Theory of Groups. The theory attempts to explain why small groups of people, like unions, hold disproportionate power in society. Small groups are more likely to succeed in their aims than large groups because they are able to effectively coordinate and achieve concentrated benefits for their members, while simultaneously spreading the costs of their actions amongst a much larger group – the wider public.

So it is with US police unions, whose actions – securing immunity for police officers, paying for the political careers of district attorneys and public prosecutors, and lobbying the government for money, arms, and legislation – were unknowingly damaging the general public. Because the entire population of the USA was sharing the costs between them – albeit some communities more than others – it could fester unnoticed. Until now.

People tend not to act when they think the benefit of doing so is outweighed by the costs. Overcoming police force, overturning the societal bias towards police as a safe force on your side, comes with high and concentrated costs. What the movements in the USA are doing now is diffusing that cost, overturning the incentive structure and allowing those who have borne the brunt of police brutality to speak out against it without fear of retribution.

The critical mass of people behind the current protests may have provided the catalyst needed to overcome the asymmetries created by Olson’s collective action problem. It will be difficult, given the unions have a distinct advantage against the general public in that they have specific goals to serve a specific group, while the fight for reform will encompass many goals aimed at helping many groups. Therefore, it is important to advocate for clear and cohesive goals, with concrete and achievable steps.

The first must be to abolish police unions – thereby making the police more accountable to their true employers, the public. Achieve this and officers would no longer be protected from firing, instead they would be responsible for their actions. Achieve this and district Attorneys and public prosecutors would no longer be in the pay of the very police they are meant to investigate. Achieve this and there would no longer be a powerful group lobbying Washington for the worst kind of policies.

For too long, police unions have created an imbalance of power and incentives in policing, placing their members above the letter of the law. The damage they have created will take years to undo, but by abolishing police unions, we can prevent further harm.

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Morgan Schondelmeier is Head of External Affairs at the Adam Smith Institute.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.