D.C. police Chief Robert Contee
Metropolitan Police Chief Robert Contee Credit: Darrow Montgomery/File

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The U.S. Court of Appeals upheld a law that bars the D.C. Police Union from negotiating over disciplinary procedures in its collective bargaining agreement with the city. In an opinion issued last week, the appeals court rejected each of the union’s arguments, including that the law violates officers’ rights to due process and equal protection.

The D.C. Council passed the law in question in the summer of 2020 after a Minneapolis police officer killed George Floyd. The law has thus far been enacted on an emergency and temporary basis, but the D.C. Police Reform Commission recommended in its April 2021 report that the D.C. Council and mayor make the provision permanent in order to improve accountability for misconduct. The commission notes that the law would allow the police chief to eliminate independent arbitrators from the disciplinary process. From 2006 to 2017, arbitrators ordered MPD to rehire 39 of the 86 officers (45 percent) it had decided to terminate, according to a Washington Post investigation, “including an officer convicted of a misdemeanor for sexually abusing a teenager in his car.”

“Giving the arbitrator authority to re-review issues tends to divorce discipline from publicly accountable actors, insulating officers from democratic oversight,” the reform commission says in its report.

The D.C. Police Union has argued that the law, which also includes sections that require the release of body camera footage of fatal incidents and bars the use of neck restraints, punished D.C. cops for misconduct elsewhere. The union has also argued that the law unfairly singles out police officers compared to other government employees by taking away their ability to bargain over how they are disciplined.

But a panel of three appeals judges sided with lawmakers, writing that they “could rationally have concluded that [the law] furthers a legitimate interest in improving police accountability. By taking disciplinary procedures off the bargaining table, it gave more flexibility in deciding how to consider allegations of police misconduct.”

The union also appealed under what’s known as a “bill of attainder,” which is a law that targets a specific person or group for punishment without a trial. In his decision, Judge Gregory Katsas, writing for the panel, rejects that argument, noting that the British Parliament in the 1700s used bills of attainder to execute people for attempting to overthrow the government; American courts later extended bills of attainder to apply to government efforts to imprison people, deny them the right to vote, and confiscate property.

“The change made by section 116—giving management greater control over procedure for disciplining employees—is not remotely analogous to any of these historically grounded categories,” Katsas writes. Neither is the law punitive, he reasons, in response to the union’s argument that the Council is punishing D.C. officers for Floyd’s death. “The union makes no serious effort to show that the Council acted beyond its discretion,” Katsas writes. “Again, we can discern no express or hidden intent to punish.”

The decision comes a few weeks after Mayor Muriel Bowser announced that the District signed a new CBA with the union, which represents about 3,300 officers and sergeants. The deal includes a 10 percent wage increase (increases for 2021 and 2022 are retroactive) and an additional 5 percent bump for officers with five or more years of service. The previous CBA was signed in 2017 and expired in September 2020. The Council still has to approve the new contract. MPD spokesperson Dustin Sternbeck declined to comment until it’s approved.