What's Wrong with Police Unions?
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University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2020 What's Wrong With Police Unions? Benjamin Levin University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Criminal Law Commons, Criminal Procedure Commons, Labor and Employment Law Commons, Law and Race Commons, and the Law Enforcement and Corrections Commons Citation Information Benjamin Levin, What's Wrong With Police Unions?, 120 COLUM. L. REV. 1333 (2020), available at https://scholar.law.colorado.edu/articles/1295. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. ESSAY WHAT’S WRONG WITH POLICE UNIONS? Benjamin Levin* In an era of declining labor power, police unions stand as a success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite support for unionization on the political left, police unions have become public enemy number one for commentators concerned about race and police violence. Much criti- cism of police unions focuses on their obstructionism and their prioritiza- tion of members’ interests over the interests of the communities they police. These critiques are compelling. But, taken seriously, they often sound like critiques of unions in general, not just police unions. If public-sector union- ism remains a social good, wholeheartedly embracing these critiques seems like a risky proposition. This Essay examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism. More pointedly, this Essay asks what critiques of police unions should mean for policing reform and the future of public-sector unionism. How are police unions different from other public-sector unions, and how might critiques of police unions apply to other public-sector unions? Ultimately, I argue that the challenge in articulating a theory of what makes police unions different highlights both the problem with police and the problem with how scholars think about unions. If police unions are objectionable because of their views and police conduct, this concern speaks to a problem with police—full stop. The problems with unions are only issues by extension. If the unions are objectionable because they * Associate Professor of Law, University of Colorado Law School. For helpful comments and conversations, thanks to Amna Akbar, Jeannine Bell, Monica Bell, Jenny Braun, Erin Collins, Andrew Crespo, Dan Farbman, Michael Fischl, Catherine Fisk, Thomas Frampton, Nick Frayn, Kristelia García, Trevor Gardner, John Goldberg, Alex Gourevitch, Aya Gruber, Hiba Hafiz, Eve Hanan, Rachel Harmon, Sharon Jacobs, Margot Kaminski, Emma Kaufman, Craig Konnoth, Kate Levine, Eric Miller, Zach Mountin, Will Ortman, Shaun Ossei-Owusu, Jessica Pishko, John Rappaport, Alice Ristroph, Maybell Romero, Ben Sachs, Pierre Schlag, Joan Segal, Jocelyn Simonson, Scott Skinner-Thompson, Sloan Speck, Carol Steiker, Seth Stoughton, Susannah Barton Tobin, and Ahmed White. This Essay benefited from presentations at the Law and Society Association National Conference, the Colorado Junior Criminal Law Workshop, and the Colorado Juniors Scholarship Workshop. Lawrence Stone MacBeth provided excellent research assistance. Thanks as well to Gordon Gamm, who generously provided financial support via the University of Colorado Law School 2020 Gordon J. Gamm Justice Award. 1333 1334 COLUMBIA LAW REVIEW [Vol. 120:1333 prioritize their members’ interests, the critiques are properly understood as undercutting public-sector unions generally. INTRODUCTION ....................................................................................... 1334 I. CRITIQUING POLICE UNIONS ............................................................ 1340 A. The Obstructionist Critique ..................................................... 1340 B. The Political Critique ................................................................ 1346 II. POLICE UNIONS AS UNIONS .............................................................. 1354 A. Police Unions ............................................................................ 1357 B. Other Unpopular Unions ......................................................... 1361 III. WHY IS THIS UNION UNLIKE ALL OTHER UNIONS? .......................... 1368 A. Use of Force .............................................................................. 1369 B. Police as Bosses or Managers? .................................................. 1374 C. Nature of Bargaining Power ..................................................... 1379 D. Demographics and Politics ....................................................... 1382 IV. A PROBLEM OF UNIONS, OR A PROBLEM OF POLICING? ..................... 1387 A. Anti-Unionism or Narrow Pro-Unionism ................................. 1388 1. Anti-Unionism .................................................................... 1388 2. Narrow Pro-Unionism ........................................................ 1389 B. Anti-Policism ............................................................................. 1395 CONCLUSION ........................................................................................... 1400 INTRODUCTION Union power in the United States has hit a nadir. Less than eleven percent of the labor force is unionized—a lower percentage than at any point since World War II.1 Twenty-eight states (including six since 2000) have passed “right to work” laws that restrict the ability of unions to collect dues from workers and reach exclusive agreements with employers.2 Recent years have seen union opponents aggressively (and often successfully) liti- gate claims that would make it much more difficult for unions to organize 1. See, e.g., Jake Rosenfeld, What Unions No Longer Do 1 (2014); Kate Andrias, The New Labor Law, 126 Yale L.J. 2, 5 (2016) [hereinafter Andrias, The New Labor Law] (“American labor unions have collapsed. While they once bargained for more than a third of American workers, unions now represent only about a tenth of the labor market and even less of the private sector.”); Press Release, Bureau of Labor Statistics, Union Members— 2019 (Jan. 22, 2020), https://www.bls.gov/news.release/pdf/union2.pdf [https://perma.cc/ TM8P-86WU]. 2. See Right to Work States Timeline, Nat’l Right to Work Comm., http://www.nrtw.org/ right-to-work-states [https://perma.cc/CR5B-XVG2] (last visited Feb. 7, 2020). 2020] POLICE UNIONS 1335 workers and raise money.3 At the same time, “gig economy” companies, globalization, and the forces of neoliberalism have undermined worker solidarity and the logic of labor law.4 Despite significant donations to Democratic political campaigns, unions have had limited success in con- vincing politicians on either side of the aisle to prioritize positions or push for legislation that specifically benefits organized labor and its members.5 But not all unions are similarly situated, and not all have floundered. As private-sector unions have struggled, some public-sector unions remain powerful political forces, extracting concessions from government employ- ers and steering policies to benefit their members.6 Enter an incongruous manifestation of contemporary labor’s power: the police union. In many ways, police unions flout both traditional assumptions about organized labor and contemporary framings of the new labor movement.7 Where unions often swing left, police unions swing right.8 Where much 3. See, e.g., Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2486 (2018); Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083, 1083 (2016) (mem.) (per curiam); Harris v. Quinn, 573 U.S. 616, 655–56 (2014); Unite Here Local 355 v. Mulhall, 571 U.S. 83, 83 (2013) (mem.) (per curiam); Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 321–23 (2012). 4. See, e.g., David Graeber, The Globalization Movement: Some Points of Clarification, in The Anthropology of Development and Globalization: From Classical Political Economy to Contemporary Neoliberalism 169, 169–70 (Marc Edelman & Angelique Haugerud eds., 2005); Raphael Kaplinsky, Globalization, Poverty and Inequality: Between a Rock and a Hard Place 163–232 (2005); Roberto Mangabeira Unger, Free Trade Reimagined: The World Division of Labor and the Method of Economics 193– 98 (2007); V.B. Dubal, The Drive to Precarity: A Political History of Work, Regulation, and Labor Advocacy in San Francisco’s Taxi and Uber Economies, 38 Berkeley J. Emp. & Lab. L. 73, 76 (2017); Jennifer Gordon, Regulating the Human Supply Chain, 102 Iowa L. Rev. 445, 454–55 (2017); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479, 480–81 (2016); Noah D. Zatz, Does Work Law Have a Future if the Labor Market Does Not?, 91 Chi.-Kent L. Rev. 1081, 1111–14 (2016). 5. See, e.g., William R. Corbett, “The More Things Change, . .”: Reflections on the Stasis of Labor Law in the United States, 56 Vill. L. Rev. 227, 227–28 (2011)