Without a doubt, technology and the ease of access to information have placed heavier scrutiny on law enforcement than ever before. Browse just about any media outlet, and one will find headlines about defunding the police, calls for police reform, and allegations of police misconduct. Public interest in police effectiveness and the adequacy of police discipline has also increased. However, what has remained the same is the notion that effective law enforcement is dependent on community trust.
When Sir Robert Peel formed the first modern police force in 1829, he outlined nine principles for effective policing. Peel’s second principle states, “The ability of the police to perform their duties is dependent upon public approval of police actions.” This tenet remains just as relevant today in American law enforcement as it was nearly two hundred years ago in London, England. For modern police forces to keep the peace and effectively enforce the law, they must have the confidence and cooperation of the community.
When a police officer acts in a manner that weakens public trust, a police agency’s efficiency is compromised. Therefore, it is imperative that allegations of officer misconduct be promptly, thoroughly, and fairly investigated. If necessary, the agency must impose discipline. The challenge for police executives, however, is to balance the need for swift action to quell public outcry over a critical incident with mindfulness of the enhanced job protections afforded to police officers through due process so that disciplinary decisions are not later overturned on appeal.
Due process affords police officers the opportunity to appeal disciplinary decisions. Historically, an astounding fifty-two percent of officers’ discipline that makes it to arbitration is reduced or overturned, and forty-six percent of police officers that are terminated for misconduct are awarded their jobs back as a result of arbitration. As a result, police agencies are often ordered to rehire or reduce the discipline of officers who may have engaged in serious misconduct. On the one hand, one can argue that arbitration is working correctly when the decisions for the agency or the officer are split roughly down the middle. On the other hand, a roughly equal split still means that nearly fifty percent of officer terminations that make it to arbitration are overturned. Just because an arbitrator makes a finding for an officer does not necessarily mean that the officer did not engage in the misconduct. Three common justifications for overturning an officer’s discipline are evidentiary justifications, procedural justifications, and proportionality justifications, which will be discussed in detail later in the article.
The ability to discipline officers is crucial for police executives to maintain order, correct bad behavior, deter future misconduct, and effect change within an organization. Anecdotal evidence from many jurisdictions illustrates that some conduct found to be unacceptable by police executives, and presumably the public at large, will result in disciplinary measures that are later overturned through arbitration. Therefore, having a disciplinary system that is effective and able to withstand challenges is necessary to ensure community trust in law enforcement.
The focus of this article is not to challenge long-standing protectionary measures for the working conditions of police officers, such as statutory Police Officer Bill of Rights provisions, the function of police unions, or whether arbitration should exist in the police disciplinary process. Rather, the article will focus on working within and improving the existing system. This article will provide a brief overview of police discipline and the arbitration process, offer analysis from a recent study of published police misconduct arbitration awards, and examine the main reasons arbitrators overturn police discipline. This article will then examine the effects of reversing disciplinary decisions on police agencies, provide recommendations for police executives to increase the likelihood that police discipline is not overturned on appeal, and finally, provide recommendations for future research.