During a week when thousands have taken to Louisville’s streets in protest, many have pressed a demand on Louisville Mayor Greg Fischer and police leaders — fire the officers who shot and killed Breonna Taylor.
But Fischer and others have pointed to due process requirements for officers — some set in state law, others in a union contract — in saying there is no quick or easy action they can take to discipline the officers without a thorough investigation.
Taylor, a 26-year-old Black woman, was killed by plainclothes Louisville Metro police detectives in March, who burst into her home to serve a search warrant. Taylor’s boyfriend has said he thought the home was getting broken into when he fired a shot and struck an officer in the leg; the officers’ return shots killed Taylor.
Her death sparked national outrage and was a catalyst for the recent protests that have erupted in Louisville and across the rest of the nation.
But so far, city officials have said firing the officers involved in her killing isn’t an option, at least for now.
“It would cost our city even more money and the end result is the same, the officer remains on the job,” Fischer said. “It would represent a lack of integrity.”
Fischer said the officers are protected by the police department’s collective bargaining agreement and state laws, which require a certain process to be followed before an officer can be terminated. Violating that process, Fischer said, would lead to consequences: the officers would be reinstated and they could file a suit and perhaps be entitled to lost wages and damages.
Speaking to protesters earlier this week outside his office at Metro Hall, a chorus of jeers and boos broke out as Fischer tried to explain how his hands are tied.
“If I could change anything, I would,” he said.
Contract Up For Negotiation, Still
Fischer does have the chance to push for changes in the union contract, which is currently under negotiation.
The city’s collective bargaining agreement with the River City Fraternal Order of Police expired in June 2018. It has been continuously renewed since, as the two entities work to come to an agreement, said Jean Porter, a spokesperson for the mayor.
Porter did not respond to follow-up questions about what changes Fischer would support in the contract, which currently exempts officers from termination without cause.
Ryan Nichols, the police union president, said everything is on the table during the negotiation process, and Fischer could certainly try to remove that provision.
“But we would push back on that,” Nichols said.
He said the current agreement does not include specific language that prohibits officers from being terminated while they are part of a pending investigation, though the effect is largely the same. Instead, the contract aims to give officers due process. The agreement requires the police chief to give a reason for any discipline against an officer — that reason must be backed up by evidence, and the evidence is the product of the investigative process, Nichols said.
“This is just all about due process,” Nichols said. “Arbitrarily, police officers can’t just be fired.”
And the contract effectively mirrors state law. So even if the contract changes, officers would still have protection from possible termination amid a pending investigation.
Changing the law requires legislation. State Rep. Charles Booker, a Democrat from Louisville, said he intends to file legislation to change the provisions that protect officers from being fired before investigations are complete.
“In these type of extreme circumstances, law enforcement officers can be fired, and should be,” he said. “We don’t need any more excuses.”
Fischer was asked what changes he’d support to the law during a virtual press conference Thursday, but did not directly address the question. Instead, he said he is working to establish a working group for “civilian review” and he said suggestions from that group will guide his advocacy for changes in state law.
“I’ll await direction from our commission before I pursue that,” he said.
These provisions are typical protections for police unions to seek out in contract negotiations, said Stephen Nasta, an adjunct professor with John Jay College of Criminal Justice.
Nasta, a former inspector with the New York City Police Department, said eliminating such a key element from the contract is certainly possible, but it’s a tough ask of police representatives.
“They might be willing to give up a raise or something, but I don’t know if that would work,” Nasta said.
Even then, Nasta said firing an officer prior to an investigation being complete is risky because the facts of the investigation could exonerate the officer, making the city liable for financial blowback and losing officer goodwill.
But in some cases, Nasta said quickly terminating an officer is the best move. For instance, the police officers in Minneapolis who killed George Floyd acted so flagrantly that “it cried out for some type of immediate attention,” he said.
Those officers were fired shortly after Floyd’s death and now face criminal charges.
“I would say probably 99 percent of police officers that saw that would say the mayor did the right thing by firing them,” Nasta said.
In Louisville, the three officers that fired on Taylor are all on administrative leave with pay, according to a police spokesperson. All three, Jonathan Mattingly, Brett Hankison and Myles Cosgrove, are white.
David James, the president of the Louisville Metro Council, said he knows some residents don’t feel good about seeing the officers continue to be paid. But, he also is waiting for more facts to be available before calling for any discipline.
James, a former LMPD detective and police union president, said he suspects Fischer is privy to more details than he has released to the public. Those details, James said, could be guiding Fischer’s response to the calls to fire the officers before the investigation is complete.
Nichols, the current police union president, said Fischer’s comments that seem to support firing the officers — how he doesn’t like the state law that provides officers protections and how he wishes he could change things — are out of line.
“He should just say, ‘We’re going to investigate this and if they did something wrong then they will be disciplined appropriately,’” Nichols said. “Let them be fairly judged.”
In most cases, officers receive the due process promised them in their contracts, which often provide exceptional protections for police, said Samuel Walker, an emeritus professor at University of Nebraska’s school of criminology and criminal justice.
Walker said the due process provisions are standard in police contracts. Pushing police unions to give them up is almost like a fool’s errand, he said.
“Why would you give up the protection you have and agree you can be fired immediately?” he said.
Generally, Walker said police union contracts include an array of provisions that create impediments to accountability. And many deserve to be scrutinized and questioned before they are ratified.
“There needs to be more sunlight on the contract negotiations,” he said.
Walker pointed to the recent study of police union contracts completed by Campaign Zero, an activist-led organization that’s focused on ending police violence. The study examined 81 police contracts from across the nation and found that many contained provisions that give officers unfair advantages in investigations or limit oversight, among other issues. Of the six categories of so-called “problematic language” identified by the group, Louisville’s contract included all six.
Among them is the provision that officers get 48-hour notice before they are interrogated about alleged misconduct, and that they also must receive a copy of any complaint against them before being interrogated. Prior disciplinary actions against officers are prohibited from being used as consideration for subsequent discipline after a certain amount of time elapses.
Walker was surprised to hear the city’s police contract included all of the provisions highlighted by the Campaign Zero group.
“That’s not good,” he said. “There’s a lot of work to be done.”