Rachel Harmon thinks that lawyers and legal scholars focus too much on constitutional law when they consider how best to regulate the police. In her new article, The Problem of Policing, 110 Mich. L. Rev. 761 (2012), Harmon identifies several other bodies of law that may also have a big impact on the quality of policing. She argues that scholars and policymakers should take all of these bodies of law into account with an eye to promoting what she calls “harm-efficient policing—that is, policing that imposes harms only when, all things considered, the benefits for law, order, fear reduction, and officer safety outweigh the costs of those harms.” (792)
Harmon’s article contains many interesting insights, but what particularly caught my eye was her discussion of public employment law.
Here is what she says:
Experts largely agree about the reforms departments should undertake to prevent misconduct. The best departments hire psychologically stable and physically capable officers. They require substantial initial and ongoing training. They provide clear, specific policies and practices, and tailor training and equipment accordingly. They maintain effective mechanisms for reporting, investigating, and responding to legal and policy violations by officers, including retraining, counseling, disciplining, or firing officers when necessary. And they usually have an early-warning system that identifies potentially misconduct-prone officers so that the department can intervene proactively. To promote civil rights, the exclusionary rule and § 1983 should encourage these or similar practices.
. . .
The incentives for reform are, however, only one side of the equation. The costs of reform also dictate what departments do, and other legal incentives can impose costs on a department’s choices. In the limiting case, for example, it would be pointless for federal law to incentivize reforms that violate state law. But even if the desired reforms are legally permissible, federal law cannot achieve much reform by imposing liability if state and local laws impose significant costs on the most effective reforms, creating countervailing economic and political incentives not to adopt them. This is the case now.
In a majority of states, for example, civil service laws heavily regulate recruiting, promoting, transferring, demoting, and terminating public employees, including police officers. These rules impose significant restrictions on how departments hire. More importantly, these laws empower employees to challenge any internal managerial action that affects them on both substantive and procedural grounds in a formal adversarial process. These challenges ensure frequent and costly legal battles when police departments demote, transfer, or fire any officer. Whatever the benefits of these laws in insulating the police from political influence, civil service laws impose significant additional costs on police departments trying to manage, discipline, or fire officers who commit misconduct. They therefore disincentivize precisely the same conduct that § 1983 and the exclusionary rule should encourage. Given this counterincentive, § 1983 and the exclusionary rule may not prevent constitutional violations effectively—or perhaps at all. (795-97)
Harmon similarly discusses the ways that labor law, collective bargaining agreements, and antidiscrimination law may impair the ability of departments to hire and discipline officers in ways that best advance the goal of harm-efficiency.
Focusing particularly on civil-service protections, I can imagine a number of objections to the idea of eliminating or watering down this aspect of public employment law. (To be clear, despite observing some downsides to civil-service protections, Harmon’s article does not itself seem to be pushing for reforms in this area.)
Civil-service protections were developed for many police departments a century or more ago in response to perceptions of widespread cronyism and political partisanship in department hiring. If hiring is based in large measure on political party or personal relationships, then departments will obviously not be staffed with the most-qualified possible set of officers. A return to the old patronage system hardly seems consistent with the goal harm-efficient policing.
Yet, there may be good reasons to think that civil-service protections could be weakened today without fear of large-scale deprofessionalization of the police force. Modern state credentialing bodies helpfully limit who can serve as a police officer. Modern government-transparency laws may establish greater accountability to the public than existed in the bad old days. Then, too, there is the regular reporting of crime data and the public expectation that police departments will control crime in quantitatively demonstrable ways. A police chief who treated competence as a secondary consideration in hiring and firing decisions would likely suffer adverse political consequences in due course.
For these reasons, civil-service protections may no longer be necessary to prevent a reversion from the professional model of policing to a patronage model.
I’m somewhat more concerned, though, about whistleblower protection.
There seem to be substantial disincentives for police departments to fire diligent cops and replace them with indifferent ones, but it’s not so clear to me that similar disincentives exist when it comes to ignoring abusively overzealous policing. Indeed, as Harmon points out, the liability standards for police departments under §1983, if anything, may encourage departments to look the other way. Then, too, there is that famous Blue Wall of Silence.
Whistleblowers — and I would define that term broadly to include cops who cooperate with misconduct investigations, not just those who proactively draw attention to problems — may play an important role in holding this kind of abuse in check. Civil-service protections, in turn, may play an important role in reassuring potential whistleblowers that they cannot easily be discharged for retaliatory reasons.
To be sure, other protections also exist, e.g., under the First Amendment. But it can be difficult for an employee to establish that he or she was fired or disciplined for improper reasons. Civil-service protections may provide an important backstop to the extent that they shift the burden, requiring the employer to demonstrate that there was a good reason for the adverse employment decision.
This is admittedly rather speculative, but it seems at least possible to me that civil-service protections, despite their tendency to discourage effective internal action against bad cops, may on balance do more good than harm insofar as they ease fears of workplace retaliation.
An additional (even more speculative) consideration also occurs to me. Civil-service protections embody a particular decisionmaking ethos: official power is not exercised in a precipitous or arbitrary way, but must instead conform to certain substantive and procedural norms; there must be good reasons for decisions, and those who are affected by the decisions must be given a fair opportunity to be heard.
This is, in my view, not only the way that police management should exercise power relative to rank-and-file officers, but also the way that officers should exercise power relative to citizens. When the law formally embraces this ethos with respect to the former, it may also help to inculcate the ethos as to the latter. Conversely, if the law permits arbitrariness by police management, that would seem to send an undesirable message to officers about the way that may exercise their power.