Their Special Bill of Rights

Like whoever came up with the name heirloom tomatoes (because nobody would buy them if they were called ugly misshapen tomatoes), the person who coined the name Law Enforcement Officers’ Bill of Rights did a great job.  Who wants to be against the Bill of Rights? When you cut cops, do they not bleed? Are they not entitled to rights?

Well sure, and no, not at all.  The LEOBR is a gimmick, a union negotiating ploy wrapped in a pristine blue ribbon, designed to save the taxpayers a few bucks until the next contract negotiation while giving cops a benefit of enormous value. It’s a political win-win, as no politician has ever lost an election for his support of LEOBR.

In the aftermath of the Freddie Gray killing in Baltimore, however, the Maryland lege is under pressure to review how the LEOBR undermined a serious investigation into the police role in the murder.  Most notably, how is it possible that your ordinary citizen killer gets seized and interrogated immediately, Reid technique applied to a lone person in a windowless room, when cops get ample time to get their story straight and a union rep at their side?

The arguments in favor are fascinating, as they are in direct facial conflict with the arguments for depriving citizens of similar benefits. Why cops and not you?

A hearing is scheduled before the Public Safety and Policing Work Group, programmed like a play by Kafka.

“State lawmakers have arranged for at least 15 law enforcement officials to speak about LEOBR, while only five representatives from organizations seeking reform will be allowed to testify,” the group said in a statement. “Disturbingly, there is no opportunity being offered to concerned individuals to share their experiences or to talk about how the state’s current LEOBR creates roadblocks in their attempts to hold police accountable in cases of misconduct or brutality.”

The cop side will be given 1:15 minutes to speak, while the opposition gets an hour.  Not so unbalanced, on its surface, and given that one side has 15 speakers while the other only has five. But, with a little extra-hard thought, the discrepancy becomes apparent.

Equal time is only speciously fair to begin with. There is one defense of LEOBR but many avenues of criticism, from the piecemeal to the wholesale. More importantly, the panel’s approach to the legal privileges enshrined in the state’s LEOBR betrays the fundamental problem with government policy toward policing, namely that police officers are treated by government, because of the political rules and culture surrounding their professions, as another constituency or interest group, and not as servants of the public who should always show deference to their employers and masters.

It’s not like the lege doesn’t know why law enforcement adores LEOBR, having enacted it once already, though the official over-arching explanation can be quickly summed up as, “as cops, we’re special targets of false accusations, and so require special protections.” Implicit is that cops don’t do wrong, much, so these super-rights, or legal privileges as Ed Krayewski calls them, have a tiny downside and huge upside.

Aside: In that respect, it mirrors the arguments of advocates for blindly believing accusers and denying due process to the accused for rape and sexual assault, as the risk of false accusation is so infinitesimal while the problem is so overwhelming that it demands special treatment.

Is it improper that government employees, who “should always show deference to their employers and masters,” should expect as much, if not more, than a voice equivalent to the public? Not entirely. When cops take their hats off, they’re citizens too, and as such, are entitled to a say in the actions of government.

But when 15 police union officials, law enforcement officials as well, are given the opportunity to “repeat, reiterate and reallege” their position, one bolstering another to create the appearance that support for our brave boys in blue is overwhelming, the stench of a set up is undeniable.

Worse still, the police unions are remarkably adept at hitting the talking points, speaking in a unified voice, and have their arguments down pat. As much as one can complain of their job performance on the street, their performance in the hearing room is superb. These guys know what they’re doing, and do it well.

The other side consists primarily of ill-spoken individuals telling their teary-eyed anecdotes. Sad as they may be, they’re outliers, anomalies that fail to address the doctrinal arguments proffered by the cops. Whether there are five speakers or 100, the effectiveness of these points to counter the union myths is in doubt. The law can’t prevent every potential wrong, so the fact that a few apples fall outside the basket can’t be helped. There will always be a few bad apples.

There are, of course, extremely sound reasons to rid society of this blight of the LEOBR, that allows government-paid killers to walk for no better reason than would apply to anyone else. The alternative, weeding out false accusations against cops, is merely a policy choice. Do we presume all cop killings good or bad? Do we presume all cops above reproach or subject to scrutiny? Are we willing to protect cops who murder in the name of protecting cops who are may be falsely accused?

The answer isn’t really as hard as the questions may make it appear.  If the protections against false accusations for everyone are sufficient, then there is no reason to assume them inadequate for cops. And if they are inadequate for cops, there is no reason to deny them to everyone.  The premise behind Blackstone’s ratio plays out no differently for police than anyone else.

Or at least, it shouldn’t, but it will before the Maryland committee, where speaker after speaker from cop unions will extol the virtues of their constituency against the lives of the legislators’ constituency.  If there is any saving grace, it’s that the legislators already know all the arguments, and this is merely a dog and pony show to be played out for the benefit of the public to create the appearance that lawmakers are open to their concerns.

And then they will go back to the legislative chamber and remember which group’s endorsement will enable them to win re-election.

H/T Walter Olson

8 thoughts on “Their Special Bill of Rights

  1. Pingback: It takes 15 officers to defend Maryland’s LEOBR… | Free State Notes

      1. Tice with a J

        Let me try to clarify. Our legal system started with one court for everyone, but it’s splitting into one court for cops and one for regular folks (and one for sex offenders, I think). What I’m wondering is: is this how it happened in the past, in other countries? Did they start with one court for all, but then transition into a high court and low court?

        I need to do some research into this. It might be useful to know how the people of the past made this mistake, so we can avoid repeating it.

        1. SHG Post author

          Ah. Thanks for explaining. At this point, I suspect the American experience is uniquely American. I could be wrong.

        2. Eliot Clingman

          Its actually a great question. The great 19th Century English Jurist, Sir Henry Maine, wrote: “The movement of progressive societies has hitherto been from status to contract”. For example, English Peers could previously elect trial by the House of Lords instead of a normal jury trial. Now British aristocrats face the standard criminal trial due process.

          In the German states there were different courts for aristocrats too. That is now gone.

          America is going in the opposite for cops and one for “citizens”… this is a pretty sickening regression and quite literally medieval!

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