By Frank X. Mullen
The reforms adopted or proposed as a result of the Black Lives Matter protests won’t do much to curb abuses of police power as long as rouge officers are protected from accountability by their unions, critics say. Those protections often are expanded by state lawmakers, who crave the endorsements of police unions and fear being labeled soft on crime.
“Every single legislative session there are bills that reduce managers’ ability to manage employees and provide for the protection of cops,” said Eric Spratley, president of the Nevada Sheriffs and Chiefs Association, which represents the sheriffs of the 17 Nevada counties, 40 chiefs of police and hundreds of other law enforcement executives and managers. He said he “passionately” argued against a bill in the last legislative session that he thought would allow officers under investigation to escape the consequences of improper conduct, but the measure “still flew through with flying colors.” That bill, SB242, passed the Nevada State Senate by an 18 to 3 margin and cleared the Assembly on a unanimous vote.
“This only protects bad cops and we don’t want bad cops,” Spratley said. “You want police reform in the special session? Reform that bill. That was a bad bill.”
Spratley and other members of police associations and unions spoke at a panel discussion sponsored by Nevada Attorney General Aaron Ford, who for the past month has been holding weekly roundtables to discuss police reforms. The effort comes in the wake of protests in Nevada and around the nation that began with the death of George Floyd, who was killed by a Minneapolis police officer during a routine traffic stop May 25. The Las Vegas and Reno police departments have recently tightened their use-of-force policies. Ford and some state lawmakers support criminal justice reforms at the state level, including re-examination and possible revision of statutes aimed at protecting officers during investigations of complaints against them. One issue is a law passed last year.
A part of that new law sets limits on how police officers can be questioned when they are suspected of wrongdoing, as opposed to how civilians are interrogated under similar circumstances. For example, officers subject to investigation are entitled to a “cooling-off” period, usually 48 hours, between the time of the incident and when they are questioned. Civilians, when questioned about something that is, or may be, a crime, have no such leeway. Under the law, questioning of the officer is limited to a single investigator and then only with the officer’s representative present.
Interviews are limited to a “reasonable time,” about four hours, and the officer being interviewed is entitled to any breaks requested. The law guarantees suspended officers get back pay if exonerated and limits the right of a superior officer to ask questions about an incident if the officer asks for the presence of a lawyer. The measure set a one-year statute of limitations on prosecuting an officer for an incident of misconduct. In addition, Nevada’s Police Bill of Rights requires that officers under investigation be presented with all the evidence collected against them – including the statements of the person who complained – prior to being interviewed by investigators. That provision, allowing the target of the investigation to see “the entire case file” prior to being interviewed, is particularly problematic, Spratley said.
“So you have a citizen who is writing a complaint about bad behavior by a police officer and then we have to provide that to the bad cop, then he knows who made the complaint and what they said about him,” he said. “So people are scared to come forward.”
Union leaders who represent rank-and-file police officers pushed back against Spratley and other critics. They said rogue officers are being held accountable and the new law was needed to make sure accused officers are treated fairly and receive due process of law. They said the statute doesn’t give cops any unreasonable protections and won’t affect public attitudes about filing complaints or a department’s ability to investigate allegations.
“There is a sense that we want to protect each other and we want to protect bad cops,” said Matt Kaplan, president of the Nevada Police Union, which represents 500 state-level peace officers. “Actually, it’s quite the opposite. We want to make sure that they are not part of this profession anymore.” The issue speaks to the heart of who cops are and what they do, he said. “I signed up to protect my community,” he said, and many officers consider police work “a higher calling.”
Critics point out that citizen complaints against officers, usually investigated internally by the departments themselves, often go nowhere and the details of investigations are kept secret. The use of excessive force is a frequent complaint in minority communities and by people who are perceived by police as having little power to fight back, as noted in a 2018 federal study.
“The best available evidence reflects high rates of use of force nationally, and increased likelihood of police use of force against people of color, people with disabilities, LGBT people, people with mental health concerns, people with low incomes, and those at the intersections of these groups.” — federal Civil Rights Commission report, 2018.
A 2015 task force commissioned by the Obama Administration made 59 recommendations for improving force policies, collecting data on police shootings, better training and diversifying police departments. The main recommendation had to do with changing the us-against-them mindset that allegedly permeates the profession: a change in police “culture,” so that officers consider themselves not warriors, but guardians. A big part of what is seen as police culture is the “blue wall of silence,” an alleged tendency of cops look the other way when improper conduct occurs. The union leaders on the panel disagreed that officers automatically cover for each other’s malfeasance and said the current system is working. They said police unions don’t enable bad cops to escape accountability.
“There is rhetoric that police unions are allowing cops to get away with criminal matters and that officers are fostered through the system,” said Rick McCann, executive director of the Nevada Association of Public Safety Officers, which has 1,500 members. “The law explicitly states that some of those protections (as he spoke, McCann put ‘air quotes’ around the word ‘protections’) that people complain about are not applicable to criminal investigations. The law states that some of those due process rights that people feel are superior to those of citizens would ultimately follow them through a criminal investigation. That is not true.” If anything, he said, officers are often overly suspected of bad behavior.
“Some of the cops in my organization feel they are being held more than accountable – that they are under greater scrutiny to the point where some officers go to work and are doing great things and are not even getting a pat on the back for the job they are doing. It’s almost like coming to work and waiting for somebody to scrutinize them to the point of finding fault. Frankly I think that makes people less interested in calling upon their brethren to do the right thing.” — Rick McCann, executive director of the Nevada Association of Public Safety Officers.
Attorney General Ford questioned the value of piecemeal reforms if the larger issue of police culture isn’t part of the debate. He said use-of-force policy changes, improvements in training, adequately funding training classes and making sure officers have the time to attend are a part of the solutions. But he said even with such reforms in place, “the difficulty is in disciplining or getting rid of some folks if they violate policy after they’ve been trained.” He said that new departmental policies in Las Vegas and Reno require other officers to intervene if they witness a colleague using excessive force, but noted that the culture of law enforcement makes it difficult for officers to bear witness against one another. That perceived lack of accountability, he said, has caused a distrust of police in many communities.
Ford also questioned why police officers should have their disciplinary records wiped clean after six years, when civilians who run afoul of the law have their records shadow them for life. He said he knows that from the experience of being cited for public intoxication when he was 18 and “it still comes up and I have to deal with it,” said Ford, 48. “I have to convince other folks that it was something that happened then and it isn’t relevant to what I’m doing now. Why shouldn’t that be the case for cops?”
Steve Grammas, president of the Las Vegas Police Protective Association, said the limitation on discipline records makes sense and that officers aren’t getting a sweetheart deal when it comes to being held accountable. “It is not tough to discipline officers,” he said. “We fire people all the time.” He said the Police Bill of Rights protects officers from being subject to inquiries that wander outside the confines of the investigation they are specifically facing. Grammas said when an officer is disciplined and then “has another major hiccup” within five years, that officer can be fired “easily.” But if the officer stays out of trouble for that period of time, then the previous infraction should be expunged so that managers can’t use it against the officer any time they need leverage.
He said the 48-hour cooling-off period is science-based and allows officers to have “two sleep cycles” to be able to more clearly encapsulate events.
Kaplan, president of the Nevada Police Union, said the state has a “progressive discipline policy that holds employees accountable. “They can be fired,” he said. “We have fair and equitable treatment for our officers and we’re really sticklers on protecting due process for our officers.” He noted that there have been several officers at the state level who have been fired for cause.
Gov. Steve Sisolak said this week that a special session of the Nevada Legislature, which isn’t due to regularly convene until 2021, will be scheduled sometime in July. The state’s expected $800 million budget shortfall created by the business closures during the height of the COVID pandemic will be on the agenda, but some lawmakers are asking that police reforms also be discussed. Ford, at previous roundtables, said staff at the Attorney General’s office has come up with a list of reform proposals that could include state oversight of local departments in cases of excessive force complaints or officer-involved deaths. Those proposals may include statewide policies on use-of-force methods, expanded training requirements, greater civilian oversight of police agencies, and a statewide policy covering riot-response tactics.
The union leaders at the recent panel said they want to be part of that conversation in Carson City, where about 20 lobbyists speak for police unions and associations. They backed proposals for more training and better funding. They also condemned what happened to George Floyd, who was strangled when one officer kneeled on his neck for almost nine minutes while three other cops looked on and did nothing. The killing was captured on video and viewed by millions. Protests began within days and have continued in Northern Nevada and all over the U.S. and the world.
“When we saw what that A-hole did in Minneapolis, what he did, sitting there for eight-plus minutes, sickened everybody in our profession. It’s something that none of us can understand or sympathize with. It’s disgusting… (Police unions) are not here to protect horrible people. We defend people, sure. But we want what the community wants. We want to weed out these bad seeds. We want to get rid of them as quickly as possible.” – Steve Grammas, president, Las Vegas Police Protective Association