- With George Floyd’s killing shifting the national conversation to police brutality, many have questioned how “bad apple” officers with a history of misconduct are able to keep their jobs.
- In a lot of cases, when a department tries to fire an officer, the decision can get turned over during an appeals process.
- But experts in policing and unions say the arbitration process isn’t to blame. Department mismanagement is.
- Visit Business Insider’s homepage for more stories.
Minneapolis police officer Peter Brazeau was caught on camera in 2016 beating an Indian-American man while he was handcuffed and lying on his back.
Brazeau and his partner, Officer Alexander Brown, who also participated in the beating, were cleared of criminal wrongdoing related to the incident but faced internal discipline from the department.
Despite the city police chief’s move to fire the officers, and a finding that the men violated the department’s use-of-force policy, a state-required “veteran’s preference” arbitration hearing resulted in Brazeau’s reinstatement last year.
Brazeau, who had served on the force since 2013, has had at least 11 complaints made against him since 2016.
Brazeau's case is an example of the challenges cities around the country face when trying to weed out misbehaving officers: getting a termination to survive arbitration.
Minnesota state law mandates that public employees who are military veterans get special arbitration hearings if they're facing removal. The rule includes police officers, who can get an outside arbitrator to review the internal findings of their case - including the chief's disciplinary action - and make their own decision on whether the firing was just.
The arbitration process can overrule the department's own disciplinary decisions
Most police officers in the city - and under many police contracts around the country - have a similar route to arbitration after being informed of their termination.
In Brazeau's case, the city's police conduct review board, composed of a mix of officers and civilians, the police chief, an assistant chief, a deputy chief, and even the arbitrator found that the officer acted with excessive force during the 2016 arrest.
But Brazeau was a Marine veteran who had twice deployed to Iraq. And while on the Minneapolis police force, he'd accrued multiple departmental awards and was selected as a training officer. The arbitrator found that termination was inappropriate, even as the board ruled against him.
Instead, the arbitrator called for the most severe punishment below termination: an 80-hour suspension. He also required that the officer be retrained.
While arbitration is often blamed as the reason why police forces can't push "bad apples" off the force, Dave Bicking, the vice president of Communities United Against Police Brutality (CUAPB), who has been researching police misconduct and policy in the Twin Cities for two decades, said he doesn't see it that way.
Departmental mismanagement, not the arbitration process, is to blame in most cases where an officer gets reinstated, he said.
"There were cases that I read where what the officer did was absolutely chilling, just horrifying, and at the end I agreed with the arbitrator not to fire the officer," Bicking said.
There are three main arbitration principles that tend to result in a problem officer reinstated, he said: The first is that there isn't evidence that what the officer did was in violation of the department's policy. The second is that discipline must be "progressive," meaning harsh punishments must follow other warnings. And the third is that the discipline must be consistent, meaning "you can't let five guys do something and totally get away with it, and the sixth guy you fire," Bicking said.
The reason Brazeau was reinstated, though, was unusual, even "bizarre," and didn't fall under these three common issues, Bicking said.
In his case, the slip-up was that after Brazeau was put on administrative leave pending an investigation into his use of force, the department brought him back as a training officer.
"I mean, what in hell are they thinking? And the arbitrator correctly pointed that if you have so much confidence in how good this officer is that you set him up as a training officer, it can't possibly be reasonable to fire him," Bickling said.
"Again, the problem doesn't lie with the arbitrator, here. It doesn't lie with the strength of the union. It surely doesn't lie with how awful a person the head of the union is," he continued. "It lies directly with the management of the police department."
Arbitration isn't the problem. Mismanagement is.
The killing of George Floyd on May 25 once again threw the Minneapolis Police Department's history of use of force into the spotlight.
Former Officer Derek Chauvin, who is charged with murder, had more than a dozen complaints on his personnel file. Another officer on the scene that day, Tao Thou, also had a spotty record.
Bicking said their not outliers, and that it's common for people with records like theirs to remain on the force.
Members of the public have filed 2,600 complaints against Minneapolis police officers over the last seven years, according to data collected by Communities United Against Police Brutality.
Of those, 12 complaints led to discipline, and eight of those were simply a "verbal reprimand."
Volunteers for the CUAPB have spent years trying to figure out why so few accusations of police misconduct in the Minneapolis Police Department have resulted in punishment that stuck.
First, the group looked into whether the department had a union contract that was particularly favorable to problem officers. They found that the union has a "good, strong contract," but that it's not substantially different from any other union contract, Bicking said.
Then the group questioned whether it was an issue with the arbitrators selected to sit in on police cases, but found that the selection process there has also been standard.
Eventually, Bicking started poring through each arbitration decision in which an officer's firing was reduced to a lesser discipline. He realized that, at the end of the day, inconsistent enforcement and unclear policies were to blame.
"The grievance procedure and arbitration is something, frankly, I fully support because sometimes the police department fires people for the wrong reasons," he said.
Like Bicking, attorney Will Aitchison also spends a lot of time reading through arbitration rulings.
The Oregon lawyer, who has represented police unions for about 40 years, has tried to read every published arbitration ruling involving a police officer from the last 50 years. He's also written eight books on the subject.
Aitchison said that he often hears the arbitration and grievance process take the blame for why officers who have been found to use excessive force find their way back to departments that fired them.
In reality, he said, police unions are only taking cases to arbitration that they believe they have a chance of winning. Even after weeding out the cases they know don't have a chance, police departments and unions are often split in how often they win, he said.
"They each win about 50% of the time," he said. "It's no different for teacher arbitration, or truck driver arbitration."
Departments need to redefine their 'discipline matrix' to ensure misbehaving officers can't appeal their way back onto the force
Teresa Nelson, the legal director for the Minnesota ACLU, told Business Insider that arbitrators will look toward the most severe punishment the department had ever issued an officer as a precedent for the maximum punishment an officer can face for a similar incident.
In one case that the ACLU reviewed, where an officer repeatedly kicked an innocent bystander while a K-9 dragged him in circles, the officer was reinstated when the arbitrator found that the most the department had ever punished someone for a similar offense was a suspension
"The problem with that is that if you're always looking at what happened in the past, when maybe the chief was much more lax, you're stuck in a pattern," Nelson said. "You can never do anything more significant, even though you want to change the culture and get rid of officers who are behaving badly."
Using the discipline matrix during arbitration is a "due process notion" to ensure that law enforcement agencies can't shift the standards without first letting employees know that they have been changed, Aitchison said.
"You can't let everybody think this is OK, and then when you find yourself publicly embarrassed by a case, say 'oh it's not OK anymore,'" he said.
Bicking agreed and told Business Insider that in order to make that shift, police departments need to actively redefine their "discipline matrix," in which they tell officers in writing how they will be proceeding on specific misconduct allegations going forward.
Police reform groups, including the CUAPB, have been advocating for the Minneapolis Police Department to build such a rubric for years.
In 2009, the department created a new discipline matrix. But Bicking said it wasn't enforced.
"The problem is, they did that and then the chief never disciplined. So the new practice became the old practice," he said.
When Medaria Arradondo was appointed the Minneapolis police chief in 2017, the CUAPB started meeting with him regularly about their reform ideas. Part of that was redoing the matrix. Ultimately, Bicking said, Arradondo agreed to revamp the Matrix, but refused to show it to him.
"It took them forever until they got the matrix," Bicking said. "They say, but can't document, that they have the matrix. At this point, we don't feel confident they did this."
The Minneapolis Police Department didn't respond to Business Insider's request for comment.
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