Here we go. Again.
In the coming weeks, reams of paper and millions of pixels will be spilled in the struggle to effectuate change. This will not erase the tragic fact of another black man dead in police custody. Another family left to grieve a loved one taken from them unnecessarily and all too soon. Another community devastated by the racist actions of the people hired to protect them. Vigils. Prayers. Peaceful protests. Violent protests. Politicians vowing to make changes for the better. Corporations paying lip service to the need for change. Privileged white folks looking on in horror and saying we just have to try harder. New ideas floated.
We've seen it all before. Over and over again. In three months, six months or a year, the energy and momentum behind the changes promised this time will have petered out, overshadowed by a pivotal presidential election with enormous consequences and the probable resurgence of the pandemic. Come the dawn of 2021, will we be right back where we've always been? How can we do something different with the spirit, courage and conviction that brings about meaningful change?
Yes, it has been heartening to see all the privileged white folk at the vigils, protests and news conferences promising change. Yes, taking the prosecution of the officers charged in George Floyd's death away from the Hennepin County Attorney's Office is a promising development, as is the resolution adopted by the county attorneys' lobbying group to place the attorney general in charge of prosecuting police shootings. Yes, the actions taken by the Minnesota Department of Human Rights and the Minneapolis City Council are positive developments. The possibility of defunding the police is an interesting and provocative idea, but we don't know what that proposal actually looks like yet.
However, this is not a new problem. Why has it taken 50 years to do what occurred in two weeks?
In a city that had been governed by liberal and progressive City Councils and mayors for three decades, whose Police Department has been led through most of this decade by a reform-minded Native American followed by a reform-minded African-American, it is almost incomprehensible that the department has been allowed to rage on, out of control, blithely using excessive force and killing people of color.
There is an explanation, although most people may be unaware: It is nearly impossible for law enforcement leaders to rid their departments of violent, lawbreaking officers. Law enforcement leaders are hand-tied in removing cops who simply cannot or will not follow department policies. Why is this?
First, the Minnesota Public Employees Labor Relations Act ("PELRA") permits police officers to collectively bargain. Second, it requires the public employers of police officers to deduct a portion of their salaries to fund their unions. The unions then use that money to, among other things, lobby and push back against meaningful change. Third, PELRA gives police officers the right to take discipline or termination meted out by their employers to arbitration. In those cases, arbitrators are not answerable to the taxpaying public and they routinely and often unjustifiably override the judgment of the officers' superiors.
No amount of good intentions or rewriting of rules or adoption of new policies or defunding is going to change the culture of police departments in Minnesota without a major structural change. Time is of the essence, and that change should happen immediately, preferably in the upcoming special legislative session.
What is that structural change? Remove peace officers from PELRA, thus ending their right to collectively bargain and arbitrate. There are already 13 categories of employees excluded from PELRA; let's make peace officers the 14th category. Make them employees — like the vast majority of Americans — who can quit their job, or be fired, at any time for any reason with or without cause. If the officer feels the termination was for an unlawful reason, violating one or more of the many protections afforded employees by Minnesota law, provide the right to challenge such actions in court and seek damages — but deny courts the power to give them their jobs back or change the discipline they received.
Much is at stake as too many videos of black men, women and even children graphically show us. Peace officers should no longer be shielded from personal financial consequences for their malevolent actions by having a right to be indemnified by their public employers. Under the present arrangement, grotesque and unlawful killings by police shift the costs of their wrongdoing to taxpayers and not the officer committing the offense. Let the officers purchase their own insurance against the risk of liability, thus taking that burden off taxpayers.
Finally, every citizen complaint of excessive use of force, every lawsuit arising out of an officer's actions and every criminal complaint against an officer should by law immediately be reported to the Peace Officers Standards and Training Board and the Minnesota Department of Human Rights with a mandate to each, and sufficient funding, to undertake an investigation and appropriate action.
This is a proposal that recognizes the need for fundamental structural change. Police unions will scowl at this; after all, communities around the nation have paid millions to settle their wrongful-death lawsuits involving the killings of unarmed black Americans.
Hopefully, politicians will have the courage to enact this change — and it will take courage and perseverance, because there will almost certainly be one heck of a fight before it can be accomplished.
But it is only with a structural change of this magnitude that any of the other changes that are being discussed — from abolishing chokeholds to defunding police — will actually have a chance of making a difference.
William Z. Pentelovitch is a Minneapolis attorney. The views expressed in this opinion are his own and not that of any business or organization with which he is affiliated.
