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First, Let’s Try Equal Employment Rights

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Body cameras and independent prosecutors for police misconduct, are both good ideas, but not the place to start in addressing our current National policing crisis. We will never succeed in avoiding another Ferguson, Staten Island, or Cleveland, until we all have the same rights under the law. You may have thought that since the Civil Rights Act of 1964 all citizens had the same rights, at least as far as the written law was concerned, but you would be wrong.

Virginia and many other states, by law, create two distinct classes of citizens. This time, they are separated not by the color of their skin, but by the color of what they wear to work. If you wear blue or some other color of police uniform you are a first class citizen with special rights that protect your job. Then there are the rest of us who are subject to the “Employment-At-Will” Doctrine, under which we can be fired for any reason or no reason at all, with the exception of certain discriminatory reasons.

Beginning in the early ‘70’s police interest organizations began a successful effort to obtain special job security rights not available to the rest of us. These rights were set forth in what is sometimes called the “Law Enforcement Officers’ Bill of Rights” (“LEOBR”).

One might have thought that law enforcement officers, who are sworn to support and defend the U.S. Constitution and the constitution of the state in which they serve, would have been satisfied with the plain, old, Bill of Rights, the first ten amendments to the U.S. Constitution, which is all the rest of us have. But again, you would be wrong.

Under these “policeman only” laws, in Virginia and generally, you cannot be discharged without first being notified in writing of the basis for your dismissal, given an opportunity to respond, with the assistance of a lawyer if you chose, and then, after all that, given the right to file a grievance. Everyone else who works as an employee in Virginia, who is even suspected of poor performance, is just gone, without any recourse.

The consequences of these special “police only” rights are, I believe, reflected in the outcomes at Ferguson, Staten Island, and Cleveland. While most of us are conscious, at least at some level, of our vulnerability to loss of employment if we perform poorly, let alone engage in serious misconduct, those same constraints simply don’t apply to those to whom we entrust police powers.

Next, these special police job rights leads to the practice of “turkey farming,” by which an officer who has killed someone and no longer enjoys the confidence of

even his own management is kept on the payroll at public expense indefinitely pending resolution of the LEOBR process. That is precisely the situation today in Fairfax County, where the officer who killed unarmed civilian, John B. Geer, remains on the public payroll as he has been for more than a year. Certainly these officers are not doing the job for which they were hired, which was to be a policeman.

Because of these special job protections, the de facto standard of police conduct has become reduced to “has the officer committed a criminal act?” That is a pretty low standard for someone to whom we entrust life and deathpowers.

A far more reasonable standard would be in line with what is expected of the rest of us – are we doing at least a satisfactory job? A policeman, who has earned the confidence of the community he serves, deserves the respect and appreciation of that community. One who has not, should be told by the communities’ elected officials to seek employment elsewhere.

It is sometimes said that the job security accorded policemen is somehow justified by the dangerous nature of their work. Actually, the average police officer serves his entire career without ever firing his weapon in defense of himself or anybody else. According to Time.com, law enforcement is not even among the ten most dangerous jobs in the United States.

Perhaps most telling are the FBI’s own figures: the number of officers killed by criminals has declined since the 70’s and is now at its lowest point. Unfortunately, the number of citizens killed by police has increased during that same period and now stands at its highest point. If you would like to buy the fatuous “dangerous job” argument, one would have to conclude that legislative exemption from the prevailing Employment-at-Will Doctrine, should also be accorded to roofers, who do have one of the ten most dangerous jobs.

It is sometimes said that policemen need special job security protections to prevent the politicization of law enforcement. The very word “politics” derives from the Latin “polities,” which means “citizen.” “Politicization” means making the police accountable to the citizens they serve acting through their elected representatives. I would certainly rather have a “politicized” police force accountable to elected officials who, in turn, must periodically face the voters, than a police force accountable only to itself.

I do not know what the outcome of the investigation into the shooting of John Geer in Fairfax Countywill be, but I do know that, whatever the outcome, and regardless of whether or not any criminal wrongdoing was involved, I do not want that individual on my community’s public payroll, in any capacity. Same for Officer Daniel Pantaleo in New York City, who took the life of Eric Garner over what amounts to a cigarette tax issue. A grand jury has refused to indict him, but I am not eager to visit the Big

Apple while he works there as a policeman.

Some people regard the crisis exemplified by Ferguson, Staten Island and Cleveland as primarily of concern to the minority community. They are literally whistling past the graveyard. Over the long run, no police department is capable of delivering two levels of police services, one to the minority community and a different level to everyone else.

It defies a principle in economics called Gresham’s law, which says that when an inferior commodity is accepted equally for one of higher quality, the inferior commodity will soon drive the quality one out of circulation. It rapidly becomes a race to the bottom.

You can be certain that the policing any minority community receives today will be the policing everyone else receives tomorrow. Lest there be any doubt, consider again Fairfax County, one of the most affluent in the Country, where the public is still waiting after more than one year, to here what action, if any, will be taken against the undisclosed officer who killed an unarmed civilian, the sixth such police shooting in less than ten years.

Many people are incensed over the failure to indict in the Ferguson and Staten Island cases. But how can we even start a conversation on the failure to indict when communities cannot even discharge an officer in whom they have no confidence.

No one has the right to be employed as a police officer. It is a privilege conferred by the community upon those who meet its requirements and are worthy of the public’s confidence and trust. When an officer has lost that community’s confidence and trust the community should be able to ask that individual to work elsewhere.

For almost 200 years, from the founding of our Republic, our Country grew and prospered without special job protection laws for policemen. If ever there was a time for LEOBR laws, the current National policing crisis amply demonstrates that that time is now gone. If state legislatures are unwilling to put policemen back in the same job security category with other citizens subject to the Employment-At-Will Doctrine, perhaps, in their beneficence they would be so kind as to also exempt the rest of us.

The writer is an attorney and civic activist in Northern Virginia. His writings have appeared in The Washington Post and the Jefferson Policy Journal.

jay-burton

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