The New Police Slowdown

5/11/2016 1:40 AM

***Preliminary and Incomplete: Please do not circulate or cite without author’s permission.

THE NEW POLICE SLOWDOWN

Andrea Cann Chandrasekher **

In December 2014, the officers of the New York City Police Department engaged in a work slowdown. Following on the heels of the brutal murder of two uniformed officers and public protests over the highly-publicized choke-hold death of Eric Garner, the officers reduced their arrest enforcement by 68% and their ticket-writing by 94% in a slowdown that lasted three weeks. Six months later, in May 2015, the officers of the Baltimore Police Department reduced their arrest enforcement by 69% for two months after six officers were indicted in the death of Freddie Grey. Now, a year later, yet another police slowdown is currently underway in the Minneapolis Police Department as officers are coming under intense public scrutiny after the shooting of Jamar Clark. These three incidents have brought national attention to the issue of police slowdowns. Very little is known, however, about this special type of police labor unrest. Indeed, basic questions about the effects of slowdowns on public safety and the laws that regulate them have gone virtually unanswered in the academic literature. The current paper begins to fill this void by presenting three findings. First, this paper presents the first-ever taxonomy of police slowdowns. There are two basic varieties of slowdowns: demand slowdowns and resistance slowdowns. Beginning in the 1960s, police departments mainly engaged in demand slowdowns, or slowdowns where the goal of the union was to garner public support for a financial benefit, usually a pay or benefits increase. These slowdowns primarily involved reductions in ticket-writing and not arrest enforcement. Recently, however, a new breed of police slowdown has emerged alongside demand slowdowns— the resistance slowdown. As exemplified by the three slowdowns described above, resistance slowdowns are slowdowns where the goal of the union is to express police discontent over a non- financial issue, usually related to police misconduct. Quite unlike demand slowdowns, these slowdowns either additionally or alternatively involve reductions in arrest enforcement. The second finding, related to the first, is that demand slowdowns and resistance slowdowns may have drastically different effects on public safety. My original empirical research shows that demand slowdowns have minimal impacts on public safety: effects on serious crime are small and traffic accidents are largely unaffected. While no empirical research currently exists on the public safety consequences of resistance slowdowns, the results from media reports suggest that the unprecedented arrest declines may be causing increases in serious crime. The third finding is that police slowdowns are currently not well regulated. I conducted an original 50-state survey of state collective bargaining statutes that shows that while almost all states in the nation regulate police strikes, only half regulate slowdowns, and the regulations currently in place rarely specify sanctions for violations. Perhaps because of this fractured legal struc- ture, police unions and their members are rarely penalized for engaging in slowdowns. However,

** Acting Professor of Law, University of California, Davis, School of Law. PhD in Economics, UC Berkeley; MA in Statistics, UC Berkeley; JD, Stanford Law School. The author thanks David Horton and Thomas Joo for extensive comments on the paper. Anita Bamshad provided outstanding research assistance. 5/11/2016 1:40 AM

Spring 2015 THE NEW POLICE SLOWDOWN 2 given the recent emergence of the new, potentially more serious resistance slowdowns, these results suggest that the current under-regulation of police slowdowns is ill-advised. Possible explanations for the under-regulation of police slowdowns are explored and empirically-supported public policy recommendations for changes in collective bargaining law are presented.

INTRODUCTION I. TOWARDS A NEW TAXONOMY OF POLICE LABOR UNREST a. DISTINGUISHING SLOWDOWNS FROM STRIKES AND OTHER PO- LICE ACTIONS b. TYPES OF SLOWDOWNS i. DEMAND SLOWDOWNS ii. RESISTANCE SLOWDOWNS II. THE PUBLIC SAFETY CONSEQUENCES OF SLOWDOWNS a. DEMAND SLOWDOWNS: THE CASE OF THE 1997 NYPD SLOW- DOWN i. Effects on Law Enforcement 1. Big Effect on Tickets 2. Minimal Effect on Arrest ii. Effects on Public Safety 1. Crime—Small Effects 2. Traffic Safety—No Effect 3. City Revenues—No Effect b. RESISTANCE SLOWDOWNS: 2014 NYPD SLOWDOWN, 2015 BPD SLOWDOWN, 2016 MPD SLOWDOWN i. Likely Effects on Law Enforcement ii. Likely Effects on Public Safety III. LAWS REGULATING SLOWDOWNS a. STATES WHERE SLOWDOWNS ARE REGULATED b. STATES WHERE SLOWDOWNS ARE UNREGULATED i. STATES WHERE ONLY STRIKES ARE REGULATED ii. STATES WHERE STRIKES ARE PRESUMPTIVELY LEGAL iii. STATES WHERE THERE IS NO LAW REGULATING STRIKES OR SLOWDOWNS IV. POLICY RECOMMENDATIONS 5/11/2016 1:40 AM

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INTRODUCTION I. TOWARDS A NEW TAXONOMY OF POLICE LABOR UNREST II. THE PUBLIC SAFETY CONSEQUENCES OF SLOWDOWNS a. DEMAND SLOWDOWNS: THE CASE OF THE 1997 NYPD SLOW- DOWN

In this section, I detail what is currently known about the public safety consequences of demand slowdowns. To date, there is only one empirical article written on the effect of demand police slowdowns on crime (Chandrasekher, 2016). That article uses the 1997 NYPD slowdown as its central case study.1 The 1997 NYPD slowdown is a good choice because it is, to the best of my knowledge, the longest police slowdown in US history. I will first layout the fac- tors that precipitated the slowdown and the union’s goals in engaging in the slowdown (Note: explain how the union wanted to garner public support for a pay raise). Then I will explain how the slowdown affected law enforcement (Note: explain how there was a large negative effect on ticket-writing but almost no effect on arrests). Finally, I will discuss the effect of the slowdown on crime (Note: explain how the slowdown mostly affected misdemeanors and violations; small effects also on larceny and assaults).

[Summarize ALER paper.]

b. RESISTANCE SLOWDOWNS: CASE STUDIES: 2014 NYPD SLOW- DOWN, 2015 BPD SLOWDOWN, 2016 MPD SLOWDOWN

In this section, I detail the likely public safety consequences of resistance slowdowns, using the 2014 NYPD, 2015 BPD, and 2016 MPD slowdowns as my case studies. To date, no empirical studies have been done analyzing any of these three slowdowns or any other resistance slowdowns. Thus, the data reported in this section comes from news reports and must be read with the understanding that later empirical analyses may confirm or deny the media reports. Still these data represent, to date, the best empirical information available on the public safety effects of resistance slowdowns.

III. LAWS REGULATING SLOWDOWNS

1 This section draws liberally from Chandrasekher “The Effect of Police Slowdowns on Crime”, revise and resubmit, ALER. 5/11/2016 1:40 AM

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In order to assess the degree of slowdown regulation in the United States, I conducted a survey of slowdown statutes in all 50 states and the District of Co- lumbia.2 Appendix A lists all 51 jurisdictions and their slowdown provisions, if any. I found that slowdowns are currently under-regulated in the United States. Specifically, only half of all jurisdictions (26) have laws that regulate slowdowns. The remaining 24 jurisdictions have no statutory provisions that address slowdowns: 16 states and the District of Columbia regulate strikes only; 3 states grant some type of limited right to strike but do not address a slowdown right; and 5 states do not address strikes or slowdowns at all. In this section, I detail the laws in these different types of jurisdictions.

a. STATES WHERE SLOWDOWNS ARE REGULATED (26)

Slowdowns are regulated in twenty-six states. Every collective bargaining statute that regulates slowdowns has some combination of the following three types of provisions—a prohibition provision, a definitional provision and a penalty provision. The prohibition provision either outlaws slowdowns explicitly3 or it outlaws only strikes but has a related definitional provision that defines strikes as including slowdowns.4 As Appendix A shows, X states outlaw slowdowns explicitly whereas X outlaw slowdowns through their strike provision.

Half of the 26 states that outlaw slowdowns (13) additionally have a penalty provision which specifies the penalties for engaging in slowdowns. The penalties for police officers ranged broadly from the least severe (pay suspensions) [FN: name the states] to the most severe (misdemeanor convictions) [FN: name the states]. X of the states that had penalty provisions also specified separate penalties for the police union. Those penalties included X and Y.

2 I ran a Westlaw search in each state for statutes that regulated slowdowns.2 To increase the accuracy of the search, I limited my analysis to only those statutes that were in the municipal or state labor law code. I supplemented my Westlaw searches by also referencing a secondary source, the Center for Economic Policy Research’s “Regulation of Public Sector Collective Bargaining in the States” (hereafter CEPR survey). Similar to my survey of state slowdown law, the CEPR survey outlined all strike law in the 50 states. When the CEPR publication gave either a strike statute that had not come up in my search,2 I looked it up to make sure that my search had not overlooked a slowdown provision that was a part of the state’s strike provision. 3 For example, Colorado is one of the X states that explicitly outlaws slowdowns. “(1) It is unlaw- ful for any employee in the state personnel system or for any labor organization, through formal action or through its agents, to incite, encourage, aid, or participate in a strike, stoppage of work, slowdown, or interruption of operations by employees in the state personnel system.” CRSA Section 8-1-126. Emphasis added. 4 For example, Delaware is one of the X states that outlaws slowdowns through its strike provision. Specifically, in Delaware’s Public Employment Act the definition of strikes includes the "deliberate slowing down of work." 5/11/2016 1:40 AM

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Open question to discuss here: For the states that did not specify a penalty, to what extent are slowdowns actually illegal in those states?

b. STATES WHERE SLOWDOWNS ARE UNREGULATED i. STATES WHERE ONLY STRIKES ARE REGULATED (16)

Fifteen states and the District of Columbia regulate strikes only without mentioning slowdowns.5 As in states that regulate slowdowns and strikes, the collective bargaining laws include prohibition, definitional and penalty provisions. However, in these 16 jurisdictions, these provisions only refer to strikes.

ii. STATES WHERE STRIKES ARE PRESUMPTIVELY LEGAL (3)

Three states grant a conditional right to police officers to strike.

Open question to discuss here: Do the statutes imply that a conditional right to slowdown also exists?

iii. STATES WHERE THERE IS NO LAW REGULATING STRIKES OR SLOWDOWNS (5)

Five states have no law regulating strikes or slowdowns.

IV. POLICY RECOMMENDATIONS

As the previous section explains, slowdowns are currently under-regulated in the United States. Why? Possible reasons: (1) Strikes were historically always the bigger concern. (2) Demand slowdowns (until recently the dominant type of slowdown) were never particularly problematic or threatening to public safety. (3) Slowdown laws are not very effective. Even in the 13 jurisdictions that outlaw slowdowns with penalty provisions, the laws are rarely invoked and police are rarely penalized for engaging in slowdowns. This is in sharp contrast to slowdowns that are carried out by other municipal unions (sanitation workers, etc) where penalties for slowdowns are regularly imposed.

But now that a new breed of police slowdown has emerged, should we change course—both in terms of increasing the number of states that have slowdown laws and in terms of making those laws more complete? If so, are these changes in the law likely to make a difference?

5 For example, X state. 5/11/2016 1:40 AM

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[Some things to consider: Do the police have / should the police have a right to slow down? Does the public have a right to not have the police slow down? (Or alternatively, maybe the public has a right to have the police slow down given current public concerns about over-policing?)]

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Appendix Table A. Summary of State Slowdown Statutes

State Type of Statute Definitional Prohibition Penalty Slowdown Provision? Provision? Provision? Statute1 Alabama Not Ad- CEPR says that collective dressed by bargaining decided at the local Statute1 level.

Prelim I Gives case that says that striking is illegal. Alaska I AS § 23.40.200(b)-Prohibition X X Provision AS § 23.40.200(b)- Penalty Provi- sion Arizona I A.R.S. § 23-1303(B)- Prohibition X X Provision A.R.S. § 23–1306,–1307-Penalty Provision Arkansas Not Ad- CEPR says that collective dressed by bargaining is legal. Statute2 Gives case that implies that Prelim I striking is illegal. California Not Ad- CEPR says that collective dressed by bargaining is legal. Statute3 Gives case that says that strik- Prelim I ing by public employees that threatens public safety is illegal. Colorado II C.R.S.A. § 8-1-126(1) - Prohibi- X X tion Provision C.R.S.A. § 8-1-129(1)-(3)- Penalty Provision Connecticut I State Employees X C.G.S.A. § 5-279- Prohibition Provision Municipal Employees C.G.S.A. § 7-475- Prohibition Provision Delaware II 19 Del.C. § 1602(m)- Definitional X X X Provision 19 Del.C. § 1616(a)- Prohibition Provision 19 Del.C. § 1617(a)-(d)- Penalty Provision District of I DC ST § 5-123.01(a)- Prohibition X Columbia Provision

Florida II West's F.S.A. § 447.203(6)- Defi- X X X nitional Provision West's F.S.A. § 447.505- Prohibi- tion Provision West's F.S.A. § 447.507(1)-(6)- Penalty Provision Georgia II Ga. Code Ann., § 45-19-1(3)- X X X Definitional Provision Ga. Code Ann., § 45-19-2- Prohi- bition Provision Ga. Code Ann., § 45-19-4- Penal- ty Provision 5/11/2016 1:40 AM

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Hawaii Conditional HRS § 89-2- Definitional Provi- X X X Right to Strike sion HRS § 89-12(a)-(b)- Regulation Provision HRS § 89-12(c)- Penalty Provi- sion Idaho Not Ad- CEPR says that city can dressed by choose to decide to engage in Statute4 collective bargain if it wants.

Prelim No Striking is not addressed. Law Summary Sheet: No Statute or Case Law Illinois Conditional 5 ILCS 315/17(a)- Regulation X X Right to Strike Provision 5 ILCS 315/17(b)- Penalty Provi- sion Indiana I IC 36-8-22-15(b)- Prohibition X X Provision IC 36-8-22-15(c)-(e)- Penalty Provision Iowa II I.C.A. § 20.3(11)- Definitional X X X Provision I.C.A. § 20.12(1)- Prohibition Provision I.C.A. § 20.12(3)-(5)- Penalty Provision Kansas II K.S.A. 75-4322(r)- Definitional X X X Provision K.S.A. 75-4333(c)(5)- Prohibition Provision K.S.A. 75-4334(a)-(d)- Penalty Provision Kentucky I KRS § 67C.418- Prohibition X Provision

Louisiana No Statute CEPR gives case saying that striking is illegal for public Prelim I safety workers.

Summary Sheet: Striking is illegal Maine II State Employees X X 26 M.R.S.A. § 979-C(2)(C)- Pro- hibition Provision 26 M.R.S.A. § 979-H(1)-(8)- Penalty Provision Municipal Employees 26 M.R.S.A. § 964(2)(C)- Prohibition Provision 26 M.R.S.A. § 968(5)(A)-(G)- Penalty Provision Maryland II MD Code, State Personnel and X X X Pensions, § 3-303(a)- Definitional Provision MD Code, State Personnel and Pensions, § 3-303(b)- Prohibition Provision MD Code, State Personnel and Pensions, § 3-303(c)-(d)-Penalty Provision Massachu- II M.G.L.A. 150E § 1- Definitional X X X setts Provision M.G.L.A. 150E § 9A(a)- Prohibition Provision 5/11/2016 1:40 AM

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M.G.L.A. 150E § 9A(b); M.G.L.A. 150E § 15-Penalty Provisions Michigan II M.C.L.A. 423.201(j)- Definitional X X X Provision M.C.L.A. 423.202- Prohibition Provision M.C.L.A. 423.206(1)-(2)- Penalty Provision Minnesota II M.S.A. § 179A.03(16)- X X X Definitional Provision M.S.A. § 179A.18(1)- Prohibition Provision M.S.A. § 179A.19(6)-(7)- Penalty Provision Mississippi I Miss. Code Ann. § 37-9-75(1)(a)- X X X Definitional Provision Miss. Code Ann. § 25-1-105- Prohibition Provision Miss. Code Ann. § 37-9-75(5)-(8)- Penalty Provision Missouri I V.A.M.S. 105.530-Prohibition X Provision

Montana II MCA 39-31-501(2)(b)- Defini- X X X tional Provision MCA 39-31-501(1)- Prohibition Provision MCA 39-31-502-505- Penalty Provision Nebraska II Neb.Rev.St. § 48-821(1)-(3)- X X Prohibition Provision Neb.Rev.St. § 48-821- Penalty Provision Nevada II N.R.S. 288.070- Definitional X X X Provision N.R.S. 288.230(2)- Prohibition Provision N.R.S. 288.240; N.R.S. 288.250; N.R.S. 288.260- Penalty Provi- sions New Hamp- I N.H. Rev. Stat. § 273-A:13- Pro- X shire hibition Provision

New Jersey I N.J.S.A. 34:13A-14- Prohibition X X Provision N.J.S.A. 34:13A-5.4- Penalty Provision New Mexi- II N. M. S. A. 1978, § 10-7E-4(T)- X X X co Definitional Provision N. M. S. A. 1978, § 10-7E-21(A)- Prohibition Provision N. M. S. A. 1978, § 10-7E- 21(B)(C)- Penalty Provisions New York II Fill in.

North Caro- II N.C.G.S.A. § 95-98.20- Defini- X X X lina tional Provision N.C.G.S.A. § 95-98.1- Prohibition Provision N.C.G.S.A. § 95-99- Penalty Provision 5/11/2016 1:40 AM

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North Da- I NDCC, 34-08-01(4)- Definitional X X kota Provision NDCC, 34-09-13- Prohibition Provision Ohio ??? (language R.C. § 4117.01(H)- Definitional X X X of R.C. § Provision 4117.15 is R.C. § 4117.15(A)-Prohibition extremely Provision confusing) R.C. § 4117.15-4117.16- Penalty Provisions Oklahoma II Fill in.

Oregon I O.R.S. § 243.736(1)- Prohibition X Provision

Pennsylva- II 43 P.S. § 215.1(b)- Definitional X X X nia Provision 43 P.S. § 215.2- Prohibition Pro- vision 43 P.S. § 215.3- 215.5- Penalty Provisions Rhode II Fill in. Island

South Caro- Not Ad- CEPR cites to Myrtle Beach lina dressed by case which says that public Statute employees do not have a right to collective bargaining. Prelim No Law Then says that striking is illegal.

Summary Sheet: No Statute or Case Law South Da- II SDCL § 3-18-9- Definitional X X X kota Provision SDCL § 3-18-10- Prohibition Provision SDCL § 3-18-14- Penalty Provi- sion Tennessee Not Ad- CEPR says striking is illegal. dressed by Gives no citation. Statute (Ask RA?) Prelim I Summary Sheet: Striking is Illegal Texas II V.T.C.A., Local Government X X Code § 174.002(c)- Prohibition Provision V.T.C.A., Local Government Code § 174.002(d)- Penalty Provi- sion Utah Not Ad- Striking is not addressed. dressed by Statute Summary Sheet: No Statute or Case Law Prelim No Law Vermont II 3 V.S.A. § 902(8)- Definitional X X X Provision 3 V.S.A. § 903(b)- Prohibition Provision 5/11/2016 1:40 AM

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3 V.S.A. § 1002 (a)-(c)- Penalty Provisions

Virginia II VA Code Ann. § 40.1-55- Prohi- X X bition Provision VA Code Ann. § 40.1-56- Penalty Provision Washington II West's RCWA 41.56.490- X X Prohibition Provision West's RCWA 41.56.490- Penalty Provision West Virgin- Not Ad- CEPR says that WV does not ia dressed by have a collective bargaining Statute statute for public employees. Everything is decided at the Prelim No local level. Law Says striking is not addressed.

Summary Sheet: No Statue or Caselaw Wisconsin II W.S.A. 111.70- Definitional Pro- X X X vision W.S.A. 111.70- Prohibition Provi- sion W.S.A. 111.70- Penalty Provision Wyoming Not Ad- CEPR says that striking is not dressed by addressed. Statute Summary Sheet: No Statute or Prelim No Caselaw Law Notes: 1. Type I states are states where only strikes are regulated. Type II states are states where slowdowns and slowdowns are regulated, and slowdowns are regulated through the strike provision. Not Addressed by Statute means that the state doesn’t regulate slowdowns via statute, but may regulate slowdowns via case law. “Conditional Right to Strike” means that the state statute outlines some conditional right to strike but does not mention a conditional right to slowdown. “Striking is Legal” means that the state statute provides some legal rights for police to strike but does not mention a legal right to slowdown. 2. Cherokee Cty. Hosp. Bd. v. Retail, Wholesale, & Dep't Store Union, AFL-CIO, 294 Ala. 151, 153, 313 So. 2d 514, 516 (1975) is a case on point. 3. Arkansas high court makes note in Potts v. Hay 229 Ark. 830, 833 (1958), that other state high courts have found that public employees have "no right to strike against the government" 4. Public Employee Relations Board determines whether "such strike creates a substantial and imminent threat." Cty. of Sacramento v. AFSCME Local 146, 165 Cal. App. 4th 401, 80 Cal. Rptr. 3d 911, 915 review granted and opinion superseded, 196 P.3d 215 (Cal. 2008) 5. There is no case on point either in the CEPR document.