Pennsylvania’s binding arbitration law stunting police reform, officials say
Philadelphia Police Commissioner Danielle Outlaw, center, and Mayor Jim Kenney, 4th left, meet with people, Thursday, June 4, 2020, in Philadelphia after days of protest over the May 25 death of George Floyd, who died after being restrained by police in Minneapolis.
(The Center Square) – Philadelphia attorney Kevin Harden Jr. said Tuesday he knows firsthand the injustices people of color face at the hands of corrupt police officers, warning that no progress can be made until the city – and the state – commit to weeding them out once and for all.
His testimony before the House Democratic Policy Committee and the Legislative Black Caucus, at times harrowing, underscored the shortcomings of a 1968 binding arbitration law – Act 111 – when handling officer misconduct cases. Too often, the result means the Philadelphia Police Department rehires problematic cops – some once dismissed for falsifying records, discrimination, excessive force or domestic violence.
One such officer, Harden said, called him a “snitch,” with a strong profanity for emphasis, and told him he deserved to have his “a** beat” after the then-newly minted city prosecutor reported him for trying to negotiate an illegal and corrupt bargain with an informant. The officer was acquitted on federal charges and rehired by the city shortly thereafter.
“So the officer that told me I was [profanity] snitch and hoped I got my a** kicked may be one of the officers who pulls me over one day and asks me for my license and registration,” he said. “How can I have trust in a department that includes individuals such as that – who were rehired after they were federally indicted, tried and acquitted?”
Philadelphia Police Commissioner Danielle Outlaw agreed that police arbitrators wield too much power and often stunt the department’s attempts to fire bad cops. She said Tuesday she supports reforms proposed by city officials that would redistribute the balance of power and prevent arbitrators from overturning the department’s disciplinary actions.
“It continues to be one of the most stubborn obstacles to police reform in Philadelphia and elsewhere,” said City Solicitor Marcel Pratt. “[Act 111] unquestionably obstructs the police reforms that would protect black and brown communities.”
A Philadelphia Inquirer investigation of 170 police misconduct cases between 2011 and 2019 concluded that arbitrators erased or reduced penalties 70 percent of the time. The data feeds into a larger pattern nationwide first reported by The Washington Post that found that more than 450 officers across the country fired for misconduct between 2006 and 2017 were later rehired.
“That’s something we really ought to reconsider if we want to make sure our city has faith in its public officials,” said Keir Bradford-Grey, chief defender at the Defenders Association of Philadelphia. “This is a huge impediment to commissioners and other people in the community trying to do better and clean up some of the corrupt culture that’s persisted over the years.”
Officials said that arbitration shouldn’t go away entirely, but rather the pool of available candidates should be widened to include those who better reflect the communities where officers serve.
In Philadelphia, 62 percent of police officers and 7 in 10 homicide investigators are white, despite accounting for less than a third of the overall population. The trend extends itself to arbitrators, officials said.
“There need to be significant changes to the process by which arbitrators are selected,” Pratt said. “They currently do not reflect diverse communities where these incidents occur. We should require that arbitrators have ties to the community.”
Outlaw also recommended investing in an early warning system – to the tune of $250,000 to $600,000 – that would use computer algorithms to identify concerning behavior among individual officers and give the city a chance to intervene before tragedy strikes.
But Harden, who now practices as a civil rights attorney for Ross Feller Casey in Center City, said there’s other changes the city must consider to rebuild trust – starting with the system that rewards overzealous patrol cops with higher paying jobs as traffic controllers, narcotics investigators or homicide detectives.
“We should stop incentivizing this,” he said. “The city-wide policing organizations are not tethered to a community, so they have less connections to those communities. We call them boot cops. They do whatever they want without impunity.”
Bradford-Grey, another proponent of the early warning system, said her association’s analysis of 1,200 officer interactions with people of color resulted in confiscation of contraband “considered detrimental to society” less than 1 percent of the time.
Harden put a face to the statistics during Tuesday’s hearing as he described how he grew up in West Philadelphia, where police interaction was constant, negative and intense.
“They over-policed everything you could do as a youth,” he said. “The way you walked, the way you rode your bike. … You could never challenge their authority on the street without paying for it.”
He then recalled the day after he survived five gunshot wounds to the back in 2006, when city police officers called him a “piece of [excrement]” for being unable to positively identify the perpetrator in a photo lineup. The same officers, he noted, had just loaded him into the back of a police cruiser and rushed him to the hospital just the day before, saving his life.
“They called me a piece of [excrement] just because I couldn’t tell them who shot me,” he said. “I couldn’t tell [the shooter] apart from a can of paint. I didn’t see him.”
Philadelphia District Attorney Larry Krasner – whose own office maintains a database of untrustworthy police officers unfit to testify – said the reforms being discussed seem like common sense.
“To me this all seems pretty simple,” he said. “To me, if you wear a uniform, you should come correct. The people who’s job it is to hold everybody accountable, should also be held accountable. It’s that simple.”
The joint hearings will continue as lawmakers gather testimony from a range of organizations across the state.
