October 20, 2020
Critics want powerful police unions reined in. Miami history shows it won’t be easy
 
 
By Charles Rabin
 

For six years, Miami Police tried to fire Adrian Rodriguez, a cop suspected by homicide detectives of taking part in a botched phone store robbery that ended in the shooting death of a retired Marine. But with the unwavering support of his union, Rodriguez hung onto his job. 

First, he was suspended with pay for three years after refusing to speak to investigators about the 2007 murder of his ex-boss, Yosbel Millares. Then in 2017, Rodriguez was fired for the first time for failing to tell supervisors where he was during his suspension, but an arbiter ruled that punishment too harsh,

Finally in 2019, he was fired for good — but over a technicality: An appeals court ruled that his second termination, for refusing to take a drug test, could stick. Prior to that decision, some city leaders said they were prepared to keep Rodriguez on paid leave indefinitely just to keep him off the street.

“It’s a difficult challenge because of the arbitration process,” said former Miami Police Chief Rodolfo Llanes, whose initial firing of Rodriguez was overturned by the arbiter, a retired magistrate. “Impartial arbiters really aren’t stakeholders in the community or the department.” 

Miami’s frustratingly lengthy search for any loophole to fire Rodriguez offers a case study into just how difficult it is to terminate or punish police officers suspected of wrongdoing. They’re protected by firewalls — ones not afforded most American workers — erected over the past five decades as police unions built enough political power to sway municipal elections through fund-raising, phone banks and social media campaigns.

“I always had a problem with fire and police,” said former Miami-Dade County Manager Merrett Stierheim. “The county commission was very responsive to them. You had a tough time making your case when everyone in uniform is sitting in the audience. County commissioners, politically, were very responsive to them.”

The result: county, city and state politicians have signed off on union contracts and laws that make it a daunting challenge to discipline bad cops. Among the key protections:

▪ Most contracts allow outside arbiters to rule on suspensions and firings.

State statutes like the Law Enforcement Bill of Rights permit officers under investigation to view information gathered by detectives, including the names of witnesses, even before they are interviewed — an option unavailable to everyday citizens.

▪ Perhaps most important, there is United States Supreme Court judicially created doctrine called “qualified immunity” that relieves police from most financial liabilities resulting from an on-duty incident.

For many officers, particularly in big departments like Miami-Dade and the city of Miami, unions have been hugely beneficial, with the twin power of political clout and collective bargaining boosting pay and benefits, including lucrative pension systems. In Miami, an officer with enough service time can collect a monthly pension when they retire equal to 80 percent of their highest paid year. County police officers can collect up to 75 percent of their highest-paid year if they work for 25 years.

But since the May 25 death of George Floyd under the knee of a Minneapolis police officer triggered demands for police reform, the power of unions to protect their own has come under new and intense scrutiny. And, for the moment, police brass appear more willing to mete out tougher discipline, even as the unions continue to fight back.

Two weeks ago, a Miami-Dade County police officer, Antonio Clemente Rodriguez, was fired after body camera footage showed him slapping a woman’s face at Miami International Airport when she repeatedly swore in his face. Police Director Alfredo “Freddy” Ramirez had to go through a number of steps to fire him — including a hearing for Rodriguez to argue his case. When it took place earlier this month, dozens of fellow officers descended on police headquarters in Doral to protest his removal and cheer him as he emerged. 

The union says the case, which will now go to an arbiter, is far from over.

“They took the position that, 'we don’t care what the state attorney does, we’re firing him.' Under the Law Enforcement Officer’s Bill of Rights, he must be allowed to see the evidence, just like in discovery,” said Steadman Stahl, president of Miami-Dade’s Police Benevolent Association. 

For elected leaders, under immense pressure to reign in police protections, picking sides potentially can make or break campaigns. In the Miami-Dade mayoral race, for example, County Commissioner Esteban “Steve” Bovo — behind the support of the county police union, and a steady stream of police endorsements over social media — received enough votes to lead August’s primary and qualify for the November runoff for mayor. His opponent, fellow commissioner Daniella Levine Cava, had supported the creation of a new police oversight panel that failed several votes before a watered-down version finally passed earlier this week. 

“I fully agree that unions have an obligation to protect their members and give them their due process,” said Gary Potter, who has written 10 books on criminal justice and recently retired from the School of Justice Studies at Eastern Kentucky University. “But they’ve become a fairly dominant political force in a lot of places. Unions combined with state laws make it difficult to punish and make it almost impossible to fire police.”

Rodriguez’s situation isn’t unique in South Florida, where the Fraternal Order of Police and the Police Benevolent Association wield out-sized political clout. 

Perhaps the most notorious example is German Bosque, dubbed Florida’s worst cop by a Sarasota Herald-Tribune expose in 2011. Bosque was arrested three times and fired six times before an arbiter ruled in October 2018 that the Opa-locka police sergeant could return to work.

The arbiter’s reasoning: Bosque was cleared by a court of law for his most recent charges, misdemeanor battery, tampering with evidence and false imprisonment after he allegedly handcuffed and cursed at a youth counselor who walked into the police station to file a complaint against the sergeant. Bosque still works as a sergeant in Opa-locka. 

“The allegations they keep bringing against German — though they sound horrendous —when you look at the facts of each individual case, it’s been exaggerated by the administration,” said Stahl, the PBA union president. 

ARBITERS STEP IN

“The real problem is the leniency of the arbitrators who often overturn the decisions of agencies,” said former Miami-Dade Police Director Juan Perez. “In addition, the Criminal Justice Standards and Training Commission has to do a better job stripping certifications from officers who are dismissed from law enforcement agencies.”

That, Perez said, would stop officers with shaky personnel records from getting new jobs at different police departments.

Arbitration is what kept Miami’s Rodriguez employed for almost a decade after a 2010 phone call from Kissimmee Police alerted investigators to a jailhouse phone call from the officer’s brother that allegedly implicated Rodriguez and his father in Millares’ murder.

Millares, a manager at the MetroPCS store where Rodriguez worked in 2007, was shot and killed by two gunmen in the parking lot as he left the store after work to deposit the day’s proceeds. Rodriguez witnessed the shooting and was interviewed by police, but there was no evidence linking him to the shooting. A year later he was a Miami cop, patrolling Overtown. The Millares case went cold.

He wasn’t brought in for questioning until three years later. He refused to cooperate after police said they believed his father was involved. Two days later, Rodriguez was relieved of duty. Despite a firing and another suspension, Rodriguez kept his job thanks to several arbitration rulings. 

Rodriguez’s attorney applauded arbiter Donald Spero’s decision, saying his client should not have been fired for invoking his Fifth Amendment right, which allows him to remain mum when asked potentially incriminating questions.

Rodney Jacobs, assistant director of a civilian police oversight panel in Miami, said unions have been successful at pressing politicians for protections for their members that sometimes seem to run counter to public interests.

At some point they've got to fall on that sword and be courageous and try to get rid of arbitration,” he said. “You’ve got to say, ‘this can no longer stand. I don’t care if I only serve one term.’” 

FIRINGS, BUT ON HOLD

At least three times over the past few months in Miami-Dade, police chiefs have been initially rebuffed from firing officers because of special rights afforded in a state statute. The Law Enforcement Bill of Rights mandates police who get into trouble are entitled to a hearing and to see all the evidence, including the names of witnesses, before they are even called in for an interview. 

The law stalled the firings of Clemente Rodriguez, the officer in the MIA case, and of two officers in Miami Gardens, Javier Castano and Jordy Yanes Martel. They were fired June 17 by Police Chief Delma Noel-Pratt after she received additional information that could be “criminal in nature” three months after the duo were caught on a cellphone video in a rough arrest at a RaceTrac Gas Station.

Noel-Pratt’s decision was put on hold after the union threatened lawsuits and, again, an outside arbitrator will have the last word. Both remain on paid leave. 

“We filed a complaint that their rights weren’t afforded and that they were fired without cause,” Stahl said of the two Miami Gardens cops. Unlike most workers, “they have to be put on notice. They have to be given reasons why they’ve been fired and they have to be given due process.” 

That same state statute was responsible for letting a Miami Police captain hang onto his job after wracking up dozens of use-of-force and citizen complaints, making racist social media posts and surviving an internal affairs investigation into him taking selfies next to handcuffed suspects, a no-no according to Miami Police Department rules.

Javier Ortiz, a former president of the city’s FOP, was not punished despite photos showing him smiling while standing next to the suspects on his Instagram page. Internal affairs investigators even admitted that Ortiz broke the rules. Yet he was cleared because it took investigators 192 days to reach a conclusion. The Bill of Rights says an officer can’t be punished if an investigation takes longer than six months.

There were also claims by a police oversight board that Ortiz was double-dipping between work and an off-duty job. Ortiz was finally suspended indefinitely in January by Police Chief Jorge Colina, after Ortiz, the captain, who is a white Hispanic, claimed he was Black, offering an old racist trope called the “one-drop rule” as proof. Though suspended, he continues to collect his salary.

‘QUALIFIED IMMUNITY’

Unlike most workers, even doctors, the United States Supreme Court has said that police officers and most government workers can’t be sued for monetary damages for actions taken on duty that are “within discretion” or fall under departmental policy — a doctrine called “qualified immunity.”

It sets a high bar for citizens who try to seek some measure of justice in civil court for police abuse by suing officers or the agencies that employ them. That protection can be eroded if an officer is found guilty of a crime — like North Miami Police Officer Jonathon Aledda, who fired his rifle at severely autistic Arnaldo Rios Soto as he sat in the middle of the road playing with a toy truck four years ago. Instead, he accidentally shot his caretaker Charles Kinsey, an unarmed Black therapist who was lying on his back with his hands in the air next to Soto.

A jury found Aledda culpably negligent. 

Not long after the verdict, the city of North Miami and Aledda settled a federal civil rights lawsuit filed by Kinsey, for an undisclosed amount. There is no cap on damages under federal law and the city tapped an insurance policy set up for officers in the event they are sued.

Stripping police of qualified immunity has now become one of the hot-button reform issues.

“It’s the biggest problem with police abuse and police aggression,” said Kinsey’s attorney, Hilton Napoleon. “If you get rid of those doctrines, then the city will be much more inclined to get rid of bad officers. Because right now, under federal law, they’re not responsible for the actions of their employees.” 

But supporters say eliminating the doctrine would expose officers and agencies to frivolous suits and potential financial ruin for simply doing their jobs.

"They have to make life-or-death split-second decisions,” said Stahl, the union president, “It’s the only thing that protects them and their families.”

The breadth of the protection does face a new legal challenge.

Earlier this month, a federal judge in Mississippi called on the nation’s highest court to overturn qualified immunity, which he said forced him to dismiss the heart of a civil rights lawsuit filed by an unarmed Black man who was pulled over by police for no reason other than he was driving an expensive foreign car.

In a carefully crafted 72-page decision, United States District Judge Carlton W. Reeves of the Southern District of Mississippi, said that Clarence Jamison was simply driving his Mercedes convertible from Phoenix to his South Carolina home when he was pulled over in Mississippi, questioned and had his car searched for almost two hours by a white police officer named Nick McLendon from the Richland Police Department. 

Four times, Jamison refused to give McLendon permission to search his car. When he finally agreed a fifth time, the police officer said he received a phone call saying there were several kilos of cocaine inside the car and called for a dog. The judge called that a “lie.” Nothing illegal was found on Jamison or in his Mercedes. McLendon filed a civil rights lawsuit. 

In his ruling, the judge agreed the law gave the officer latitude but he also alluded to the string of unarmed Black men killed by police in recent years.

“But let us not be fooled by legal jargon. Immunity is not exoneration,” Reeves wrote. “And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine. As the Fourth Circuit concluded, ‘This has to stop.’”