Employment Law Daily Boston police union can’t get body camera program temporarily enjoined
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Wednesday, September 14, 2016

Boston police union can’t get body camera program temporarily enjoined

By Dave Strausfeld, J.D. A union of Boston police officers was not entitled to an injunction to temporarily block implementation of a pilot program to test body-worn cameras, held a Massachusetts Superior Court judge. While the union sought the injunction to maintain the status quo during arbitration of the union’s grievance over the manner in which the body camera pilot program was implemented, the union did not show a likelihood of success on the merits of the case, especially because a Massachusetts statute grants police commissioners significant non-delegable control over officers’ uniforms and equipment. And the union did not make a showing of irreparable harm: While a recent Rand Corporation study indicated that body cameras are associated with increased assaults against police, other studies have reached different conclusions (Boston Police Patrolmen’s Association, Inc. v. City of Boston, September 9, 2016, Wilkins, D.). Pilot program to test body worn cameras. The Boston police department and the police union negotiated a memorandum of agreement (MOA) that said the department could conduct a six-month body camera pilot program using up to 100 officers who volunteered to participate. Around the same time, however, the union circulated a memorandum to its membership, stating "NOBODY . . . should volunteer for this program," and ultimately not a single officer formally volunteered to participate. With no officers stepping forward, the department decided to order officers to participate. Objecting to compulsory assignment, the union filed a grievance and then requested arbitration. Seeking to maintain the status quo while the grievance was arbitrated, the union also went to court seeking an injunction. Likelihood of success on the merits. Denying the injunction, the court explained that the union confronted a major hurdle in attempting to demonstrate a likelihood of success on the merits of the case: a Massachusetts law known as the Commissioner’s Statute. This statute grants the police commissioner significant non-delegable management authority over matters including deployment, uniforms, and weapons of police officers. In light of the case law interpreting the statute, the court saw "no defensible distinction between the non-delegable decisions regarding uniforms, weapons, duties and assignments" covered by the statute "and the order in this case to wear [body cameras]." In other words, the Commissioner’s Statute would make it very difficult for the union to show that "this court should (or even can) enjoin the Commissioner from implementing the Pilot Program." Irreparable harm. And in any event, the union failed to make a showing of irreparable harm. Although it argued that permitting the pilot program to move forward would frustrate any future arbitration award, the court was not convinced that implementing a temporary pilot project would do "anything irreparable." After all, an arbitrator still would have power to order a halt to all or any part of the program pending good faith bargaining, except as to matters within the police commissioner’s non-delegable authority. And as to the Rand Corporation study indicating body cameras are associated with increased assaults against police, there were also contrary studies, and the research was, at best, inconclusive. Further, the Rand Study acknowledged it had not found a causal link, and, as the court pointed out, "[s]tatistical association does not equal causation." Thus the court was not persuaded that body cameras were likely to increase risk to officers or that there was any other risk of irreparable harm. "Lackluster efforts." In passing, the court commented that it would be particularly unfair to enjoin the commissioner’s order when the union had made such "lackluster efforts" to ensure the pilot program would be a success. Under the MOA, both sides shared the responsibility to implement the pilot program. Yet, the union’s memo had discouraged participation. "Had the Union mobilized even a small part of its membership, the Pilot Program would have proceeded as a voluntary program, avoiding any of the negative impacts allegedly flowing from the Commissioner’s orders" that compelled participation, the court wrote.

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