Volume 96, No 2, Spring 2024
By James Dykman [PDF]

Despite assurances that the only problem with American policing is that there are “a few bad apples,” police departments nationwide seem less capable than ever of plucking “bad apple” officers from their ranks. Scholars attribute this inability to remove officers to many sources, including shoddy internal investigations; police union collective bargaining agreement provisions; and unique civil service protections, known as the Law Enforcement Officer Bill of Rights. One protection, in particular, continues to spark controversy for returning fired officers back to the forcethirdparty arbitration. 

Take, for example, the case of Officer Elizabeth Montoya. In January of 2019, Officer Montoya, a San Antonio Police Department officer, handcuffed a pregnant woman, punched her in the head seven times, and left her in the rain for half an hour before finally taking the woman to jail. Although the San Antonio Police Department subsequently fired Officer Montoya, an arbitrator returned her to the force with roughly three years of back pay. The arbitrator found that Officer Montoya’s treatment of the pregnant woman was inhumane, but believed that firing her was excessive compared to seventeen other cases of incustody abuses where officers received only suspensions. Guided by this reasoning, the arbitrator reduced Officer Montoya’s termination to a fortyfiveday suspension and instructed her to participate in remedial training. 

Officer Montoya’s arbitration outcome is not unusual. Research from the late 1990s to the early 2000s found that arbitrators continually reduced or reversed both suspensions and firings in the Chicago and Houston police departments. Recent studies of hundreds of arbitrator decisions have repeatedly found that arbitrators reduce or reverse roughly half of all officerdiscipline cases. Many of these decisions are also unreviewable by courts. One recent study found that the vast majority of collective bargaining agreements between police unions and their city employers deprive cities of the opportunity to appeal arbitration decisions. As such, the study concluded that thirdparty arbitrators, not police departments, mayors, city councils, or civilian oversight boards, are often the “true adjudicators” of police discipline.