Fourteen of the contracts examined featured preferential treatment of officers that would not be afforded to a civilian. This represented 56% of the contracts reviewed. Approximately 16% of the bargaining agreements contained terms that implied special treatment but were unclear on the specifics. About a third of the contracts reviewed were silent regarding special treatment, leaving the matter to departmental policy.
The types, extent and scope of preferential treatment vary contract to contract. Common examples include:
Some contracts specifically require the disclosure of the names of complainants.[*] Others require information be given to officers before an interrogation begins, without specifying whether that information include the identity of the complainant.[†] The contracts we examined with these terms were split between these two approaches.
Regardless of the approach taken, preferential disclosure of information about a complainant is improper. In those instances where the complainant’s identity is disclosed, there might be a chilling effect on the propensity for people to report police misconduct. For citizens and police alike, knowing their identity could be disclosed opens them to retribution or pressure to drop the complaint. This is particularly true for officers who wish to report their fellow officer’s misconduct but fear face backlash for not being sufficiently loyal to his or her colleagues.
For those who have access to the complaint, but not the name of the complaining witness, disclosure is still problematic. This practice affords officers the opportunity to craft a more favorable narrative of events designed to mitigate discipline. This is a particularly pernicious concern for those municipalities that couple preferential access to records with a mandatory minimum waiting period before questioning. In these jurisdictions, officers facing potential discipline can work with a lawyer or their union representative to develop a version of events specifically designed to avoid the consequences of their actions. While everyone should have the right to counsel when facing criminal charges, such accommodations are neither necessary nor appropriate for an investigation into non-criminal misconduct.
Regulating the conditions of interviews conducted during an investigation also unreasonably restricts a police department’s ability to discipline officers who have committed misconduct. By limiting these interviews to only certain times of day, limiting the length to a nebulous “reasonable” period and requiring rest periods, police departments are restricting their ability to respond to misconduct promptly. This disparate treatment is only magnified if an officer is being questioned about potentially criminal misconduct, as an ordinary criminal suspect is not afforded these luxuries.[‡]
[*] These include Clinton Township, Dearborn Heights (officers), Jackson (command), Madison Heights (officers), Novi (officers), Portage, Royal Oak.
[†] These are Dearborn Heights (supervisors), Grand Rapids, Jackson (officers), Kalamazoo, Novi (command), Taylor, Wyoming.
[‡] It should be noted that police officers do receive some additional protections if their discipline relates to potential criminal activity. This is due to the Fifth Amendment, which protects officers from being forced to incriminate themselves in criminal conduct. These protections are necessary as a matter of constitutional law and are not relevant for the purposes of this paper.