Why is that UC Davis Cop Still on the Job?

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Mike Schilling
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    says:

    My gosh, he’ll get a hearing before they fire him?  Communism!Report

    • Avatar Jaybird in reply to Mike Schilling
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      says:

      Do we even know that he used pepper spray? Has that been proven? Is it just the teabaggers saying that he did? Do we really want Fox News in charge of whose job is at risk?Report

      • Avatar Mike Schilling in reply to Jaybird
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        says:

         Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! Report

        • Avatar Jaybird in reply to Mike Schilling
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          says:

          But we’re not talking about laws that protect everybody, are we? We’re talking about laws that only protect the devil without protecting Catholics who want to burn Protestants to death.Report

          • Avatar Mike Schilling in reply to Jaybird
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            says:

            I’m an at-will employee, which means I can be fired at any time for any reason.  (Given what you do, I expect it’s the same for you.)  That doesn’t mean I begrudge people who have some protection from arbitrary firing, or think that there can be rules that say “except really bad guys.”Report

            • Avatar Jaybird in reply to Mike Schilling
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              says:

              I, too, am an at-will employee. Ironically, this made it much easier for me to be hired and, my commenting pattern to the contrary, ensures a fairly consistent level of quality on my part.

              If the cop was at-will, do you think those kids would have been sprayed?Report

              • Avatar Mike Schilling in reply to Jaybird
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                Do I think that as he was spraying them, he was thinking “good thing my union will support me in this” as opposed to “fucking scumbags!”.  No, I do not.Report

              • Avatar Jaybird in reply to Mike Schilling
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                I’m not particularly interested in his thought process, myself. I mean, maybe he was thinking “I am protecting myself and my children from these dangerous people!”

                That’s only trivially interesting to me.

                I’m wondering if there is anything he could have been videotaped doing that would get you to say “you know what? If I did that, I *SHOULD* be fired.” Anything at all?

                I mean, if spraying multiple non-violent kids (who weren’t breaking the law) in the face with pepper spray that he wasn’t authorized to carry doesn’t qualify.Report

              • Avatar Jesse Ewiak in reply to Jaybird
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                says:

                If he shot a baby at point blank range in front of 5,000 witnesses, he still deserves a hearing, because that’s part of his contract.Report

              • Avatar Jaybird in reply to Jesse Ewiak
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                says:

                I would hope that he’d have the decency to yell “STOP RESISTING” first.

                 Report

              • Avatar Mad Rocket Scientist in reply to Jesse Ewiak
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                says:

                And what guarantees do we have that said hearing won’t be a whole lot of, “Good job spraying that dirty hippy, try not to get caught on video next time.  Hearing over.”?Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                Nothing. But that’s a case of bad law, not the inherent evil of unions. Zimmerman in Florida might get off because the SYG law was written badly. Does that mean the right to concealed carry is inherently wrong?Report

              • Avatar Jaybird in reply to Jesse Ewiak
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                says:

                Was the cop exercising a right?

                This is an argument that I, as a libertarian, am surprised to hear.

                I’m more likely to go all Clint Eastwood and ask “what about the rights of that little girl?”Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                If the contract says, “before firing, you have to go through steps a through l,” it doesn’t matter what the person did. The steps are his right via a negotiated contract. Ya’ know, those things libertarians supposedly hold sacred?Report

              • Avatar Jason Kuznicki in reply to Jesse Ewiak
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                says:

                Ya’ know, those things libertarians supposedly hold sacred?

                I missed the part where we’re never allowed to think to ourselves, “Gee, maybe this particular type of contract doesn’t work out so great. Let’s not do it in the future.”  Or where we’re never allowed to suggest as much in print.

                Could you please direct me to a libertarian book or article that argues for this position?Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                I happily agree this shouldn’t be part of the next union contract (or in reality, part of the current law), but because the unions/police organizations managed to get a crappy law into place isn’t proof of the inherent wrongness of public sector unions.

                 Report

              • Avatar Mike Schilling in reply to Jaybird
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                Of course he should be fired, and of the outcome of the hearing isn’t “fire his ass”, something has gone very wrong.  But that’s not an argument for not having a hearing.Report

              • Avatar Jaybird in reply to Mike Schilling
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                says:

                Well then! allow me to quote the article (and please note the bolded verb tenses):

                Once placed on administrative leave, he was subject to an internal affairs investigation. The law requires that its findings alone can bear on personnel actions, never mind all the useful evidence collected by the independent consultants, or the analysis performed by the panel of esteemed statesmen. The internal affairs investigation into Lt. Pike’s actions were conducted by Ed McErlain, a former police officer and “senior investigator for Norman A. Traub Associates, which specializes in employment investigations;” and Deborah Maddux Allison, “a partner with the Van Dermyden Allison Law Corporation, who specializes in employment law and workplace investigations.” They were advised by Charles “Sid” Heal, another retired police officer.Report

              • Avatar Mike Schilling in reply to Mike Schilling
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                Jason is quoting Balko, who is quoting Condor Frieddersdorf ‘s piece at http://www.theatlantic.com/politics/archive/2012/04/reports-reveal-two-new-scandals-in-the-pepper-spraying-at-uc-davis/256058/ (published on 4/19).  Frieddersdorf is not very explicit about the current state of the process (for obvious reasons, and, yes, the level of secrecy involved is awful), but he seems to me to imply that the investigation has been completed but its outcome is still uncertain.Report

              • Avatar Jaybird in reply to Mike Schilling
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                Given the level of secrecy involved, I suspect that the outcome will be uncertain for a long, long time.

                At what point will we be able to look at his continued employment and reach the conclusion that the outcome included “not getting fired”? May? June?Report

        • Avatar Jason Kuznicki in reply to Mike Schilling
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          says:

          To quote:

          Once placed on administrative leave, he was subject to an internal affairs investigation. The law requires that its findings alone can bear on personnel actions, never mind all the useful evidence collected by the independent consultants, or the analysis performed by the panel of esteemed statesmen. The internal affairs investigation into Lt. Pike’s actions were conducted by Ed McErlain, a former police officer and “senior investigator for Norman A. Traub Associates, which specializes in employment investigations;” and Deborah Maddux Allison, “a partner with the Van Dermyden Allison Law Corporation, who specializes in employment law and workplace investigations.” They were advised by Charles “Sid” Heal, another retired police officer.

          Their method and findings are secret.

          The public never gets to read them.

          This isn’t the kind of law you’d want to get all high and mighty about.  But to make it easier for you, imagine that Lt. Pike were a corporation.  Maybe that’ll help?Report

          • Avatar Mike Schilling in reply to Jason Kuznicki
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            says:

            I suspect I want the guy gone more than you do, since as you might recall I have a personal stake in it.  But I’m going to let the procedure play out before I condemn it.Report

            • Avatar Jason Kuznicki in reply to Mike Schilling
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              says:

              And on what basis will you condemn the procedure?  The method and findings are secret.Report

              • Avatar James Hanley in reply to Jason Kuznicki
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                says:

                I can’t speak for anyone else, but I think that’s a pretty good basis for condemning it right there. 😉Report

              • Avatar Jesse Ewiak in reply to Jason Kuznicki
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                says:

                Shockingly, a crazy liberal like me thinks that just because somebody happens to be an asshole, he doesn’t lose his rights. If his union signed a contract saying these actions aren’t out in the open, fine.

                I mean, I realize that since there’s one bad example of this, we should immediately repeal the Wagner Act, let everyone be an at-will employee, and maybe defund the Department of Labor, but again, I’ll say this again, it should be harder to fire people in this nation than it currently is. Germany’s doing OK without at-will employment.Report

              • Avatar Jason Kuznicki in reply to Jesse Ewiak
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                says:

                a crazy liberal like me thinks that just because somebody happens to be an asshole, he doesn’t lose his rights

                To which I fully agree.  Now will you kindly let the good citizens of California (and the assholes among them, too) have their rights — their rights to review the actions of government agents?Report

              • Avatar Jaybird in reply to Jason Kuznicki
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                says:

                They can review the actions of government agents, they should just keep it secret.Report

              • Avatar Jason Kuznicki in reply to Jaybird
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                says:

                We cannot let the Public Thing out into public, now can we?Report

              • Avatar Jesse Ewiak in reply to Jaybird
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                says:

                If the legislators, elected by the people, who appointed those who signed a contract with the union that the guard was employee by that says otherwise? Nope. Sorry, it sucks, but you don’t get to rip up contracts because they’re inconvenient.

                Again, do I agree with the provision? No. But, that doesn’t mean unions shouldn’t be able to negotiate with the government. Want more openness? Annoy your legislators about it.Report

              • Avatar Mark Thompson in reply to Jaybird
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                says:

                “If the legislators, elected by the people, who appointed those who signed a contract with the union that the guard was employee by that says otherwise? Nope. Sorry, it sucks, but you don’t get to rip up contracts because they’re inconvenient.”

                Replace the phrase “the union” in this sentence with “Blackwater,” and see if you still feel comfortable with it.  I say this as someone who has a clearly pro-union track record on this site.Report

              • Avatar Jesse Ewiak in reply to Jaybird
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                says:

                I am totally comfortable with it. Again, I think when the opportunity comes up, Blackwater or it’s equivalent should be ended, just like the current law about this situation should be changed, but if there is a current contract and Blackwater isn’t breaking any rules of the contract, then they should continue to be employed per the terms of the arrangement.Report

              • Avatar Jason Kuznicki in reply to Jaybird
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                says:

                Which means that there’s not a shadow of a difference between us.

                But cheering for one’s tribe still feels good, I guess.Report

              • Avatar Jesse Ewiak in reply to Jaybird
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                says:

                No, I believe public sector unions should have the same rights as private sector unions, including the right of due process. Even if they’re asses.Report

              • Avatar James Hanley in reply to Jesse Ewiak
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                says:

                If his union signed a contract saying these actions aren’t out in the open, fine.

                Yes, he has a right to his contractual protections, but that’s not actually what’s at question here, is it?  The question is whether such a contract should ever exist for public employees.

                Yes, it’s shocking that a crazy liberal like you is ok with secret government procedures that protect public employees who abuse the citizens who pay them.Report

              • Avatar Jesse Ewiak in reply to James Hanley
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                says:

                I’m not OK with such procedures. But, they’re part of the contract.

                However, I do find it amusing that two of the people who are so quick to complain about liberals painting a broad brush of libertarians are oh so happy to make one bad example proof that those pesky government employees don’t need unions.Report

              • Avatar James Hanley in reply to Jesse Ewiak
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                says:

                two of the people who are so quick to complain about liberals painting a broad brush of libertarians are oh so happy to make one bad example proof that those pesky government employees don’t need unions.

                Which two?  If that’s how you’ve read me, you need to go back and try again.  (It’s particularly ironic to paint with a broad brush when you’re complaining about people painting with a broad brush who complain about others painting with a broad brush–you rather prove their original point if anything.)Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                Sorry James, but you and Jason are the two main guys that leaps to libertarian’s defense whenever somebody like me or somni may something a bit overboard about libertarians. There’s not wrong with it, but it’s part of what you do here.Report

              • Avatar Jesse Ewiak in reply to James Hanley
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                says:

                Also, as Clawback noted, this was a law that was passed, not part of union benefits. I’m guessing it wasn’t passed because of a love of public unions, but because of the populace’s love of police officers.

                Plus, from my little bit of Goggling, back when the law was passed in ’77, one of the orginial supporters was the ACLU, those noted supporters of the destruction of civil liberties and that the confidentiality and silence issues are part of the penal code, not a union contract or even the POBR.Report

  2. Avatar clawback
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    says:

    The short answer? Public sector unions.

    No, the process is dictated by the law, not by a union contract.Report

    • Avatar Mad Rocket Scientist in reply to clawback
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      says:

      And who do you think lobbied for the law?Report

    • Avatar Jason Kuznicki in reply to clawback
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      says:

      It would be fantastic if more people read when I linked something:

      California, like many states, has a “Police Officer Bill of Rights,” a set of rights negotiated by the police union afforded to cops under investigation that goes well above and beyond the rights of regular citizens. In some states, if fellow officers don’t follow strict procedures while investigating another cop, the cop under investigation gets off. If you’re cynical, you might say these “Bills of Rights” are how-to guides for cops who want to help a fellow officer get away with misconduct.

      Emphasis added.  But still.Report

      • Avatar Jesse Ewiak in reply to Jason Kuznicki
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        says:

        Except of course, the POBR is a law passed by the legislature, not part of a union negotiation. I have no doubt the union supported it, but it isn’t a part of the union contract, right after wage rates and vacation time.Report

      • Avatar clawback in reply to Jason Kuznicki
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        says:

        I read it.  I dismissed the editorializing, bolded or not, because unions don’t negotiate with legislatures.Report

        • Avatar Jason Kuznicki in reply to clawback
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          says:

          The union asked for and received essentially what it wanted.

          So perhaps “negotiation” is editorializing, but not in the direction you intend?Report

          • Avatar Jesse Ewiak in reply to Jason Kuznicki
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            says:

            Police officers don’t get what they want because they’re in a union. Police officers get what they want because they’re largely respected in the community. I’m sure even in states that are virulently anti-union, police officers have a lot of protections.

            As clawback stated, this was a law passed by legislators elected by the people, not unions negotiating with bureaucratic in a dusty room somewhere. So, yeah, stating it as a “set of rights negotiated with the police union” is a bit of rhetorical flourish intended to invoke ideas of unions and their legislators conspiring together.Report

          • Avatar clawback in reply to Jason Kuznicki
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            says:

            Not sure where you’re going with this, so maybe you could explain under exactly what conditions people should be allowed to petition their representatives.  Because you’ve already seamlessly pivoted from the typical right-wing position that public sector employees shouldn’t be allowed to negotiate labor contracts.Report

            • Avatar karl in reply to clawback
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              says:

              Perhaps public sector employees aren’t people.Report

            • Avatar Will H. in reply to clawback
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              …the typical right-wing position that public sector employees shouldn’t be allowed to negotiate labor contracts.

              As a journeyman, I can tell you that, among the trades, public employees are typically viewed with disgust or apathy.
              Today’s unions are a profit-sharing model.
              There is no profit to be shared in government.
              That’s where labor history gets you.Report

            • Avatar Mike Schilling in reply to clawback
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              says:

              Not sure where you’re going with this, so maybe you could explain under exactly what conditions people should be allowed to petition their representatives.

              People should not be allowed to petition their representatives if the result will interfere with the right of people to peacefully assemble, because that right is protected by the Constitution.Report

  3. Avatar greginak
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    says:

    I’d be really surprised if getting rid of Police unions changed the lack of accountability for cops much. Cops would be a powerful interest group even if they didn’t have union negotiating contracts for them. They could still endorse or slam politicians through a PAC without a union. Much of the populace likes cops and fully support what they do and long as it isn’t done to them. If some mayor is booting to many cops a lot of people will get upset. Creating true accountability for the cops would involve local citizens from the communities that are policed having significant power to give cops consequences. I really doubt many city governments or large swaths of the population really want to give minority/immigrant groups much power over cops.Report

  4. Avatar Michael Drew
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    says:

    Hell, I don’t even think the guy necessarily ought to be fired.  He sure as shit deserves whatever procedure he is guaranteed. I wonder if the people who got sprayed want him fired.  I deplored what I saw the guy doing, but at the same time, this is exactly the kind of thing he got hired to do: deal with tense situations.  He dealt with it, though by my lightshe fished up doing so.  Well, does what he did rise to the level of a removable offense?  Surely there is a standard for that and a method for assessing whether it was reached.  How else is all of that supposed to be determined but by whatever procedure is laid out?

    As to secrecy, does any company anywhere make its personnel reviews publicly reviewable?  Do we expect the procedures that go into removing a mid-level employee at the Department of Agriculture who committed a fireable offense to be publicly reviewable in real time just because they are a public employee?  I don’t.  I’m perfectly comfortable with this.Report

  5. Nob Akimoto Nob Akimoto
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    says:

    This is just me, maybe…but the UC-Davis report tells me more that the chief of police and the UC-Davis Chancellor ought to be fired, more than the individual copper. And as far as I’m aware, university chancellors don’t have a union.Report

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