2021 | Government

Police union suing Montgomery County over use-of-force policy

Union representative says policy puts officers’ health and safety at risk

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Logo from FOP Lodge 35 Twitter page

Fraternal Order of Police Lodge 35, a union that represents officers in Montgomery County, is suing the county over a new policy that restricts officers’ ability to use force, saying the policy is not subject to collective bargaining.

The County Council passed the use-of-force policy in July 2020 in response to local and national concerns over police brutality. The change followed the death of George Floyd, a Black man in Minneapolis who died after a police officer knelt on his neck for several minutes.

The policy adds limits and conditions on certain actions officers may take, including:

  • Neck and carotid restraints (prohibited completely)
  • Use of deadly force against someone fleeing
  • Striking a restrained individual
  • Shooting from or at a moving vehicle
  • Less lethal force
  • Use of no-knock warrants

The policy also includes a provision that exempts the policy from collective bargaining with the Fraternal Order of Police (FOP).

The decision to include the exemption had been a point of contention during the discussions over the bill last year, and was opposed by the union. Police Chief Marcus Jones also said County Executive Marc Elrich was opposed to exempting collective bargaining rights.

Scott Peterson, a spokesman for the county, wrote in an email to Bethesda Beat on Friday that due to pending litigation, the county can’t comment on the lawsuit. 

Sgt. Rebecca Innocenti, a Montgomery County police spokeswoman, wrote in an email on Friday that the department does not comment on pending litigation.

Council Member Will Jawando, a lead sponsor on the use-of-force bill, said in an interview he was disappointed the union filed a lawsuit. The union was heavily involved during the legislative process, he added.

Jawando said council members, as elected representatives, have the right to determine when police can use deadly force, an important power delegated to them by county residents.

The union’s argument that use of force falls under working conditions of collective bargaining under the county charter is broad, Jawando said.

“If that’s the case, then everything is under working conditions,” Jawando said. “I’m a lawyer, as well, and you could say that about anything to do with law enforcement. … The primary impetus of this law is how our police interact with our residents and how and when they can use deadly force.”

Holland said the lawsuit was filed in Montgomery County Circuit Court this week, but there was no record of it Friday morning in the state’s court database. The circuit clerk’s office did not have any additional information about it on Friday morning.

The complaint names Montgomery County as the defendant and states that the county has interpreted the collective bargaining exemption in the policy to be a “prohibition on collective bargaining over any matter bearing any relation to the use of force policies issued by the Police Chief.”

Under the county charter, officers have the right to collective bargaining in areas such as terms and conditions of employment, as well as working conditions and health and safety, the lawsuit states.

“By prohibiting collective bargaining over certain minimum standards regarding use of force, and interpreting that prohibition to extend to all matters bearing any relation to use of force policies, Defendant has violated the Montgomery County Charter’s guarantee that Montgomery County police officers have a right to bargain over terms and conditions of their employment, including matters that bear a direct, material, and significant relationship to the health and safety of the police officers,” the lawsuit states.

The lawsuit goes on to state that by restricting the use of force officers can use, it poses a “significant risk to the health and safety of members of the FOP by prohibiting uses of force that may be necessary for an officer to employ to protect themselves from a violent suspect.”

Because the FOP is required to bargain with the county over “terms and conditions of employment” including “matters affect health and safety of employees,” the union believes the county has gone against its charter by exempting collective bargaining from the use-of-force policy, the lawsuit states.

FOP Corporation Vice President Lee Holland told Bethesda Beat on Friday that the objective of the lawsuit is to bargain the areas of the policy that the union feels affect officers’ health and safety.

“There is a lot of concern from our members on the new use-of-force bill. What they can do. What they cannot do. How they’re treated. When they use force. Those things,” he said. “Now, there’s a lot of things in that policy that are not bargainable and there’s a lot of things that we actually agree with in the bill. But a lot of things also contradict the Supreme Court standards, and there’s things that affect health and safety of police officers.”

Holland said he hopes the bill will be amended to remove the exemption on collective bargaining.

Dan Schere can be reached at daniel.schere@bethesdamagazine.com.

Steve Bohnel can be reached at steve.bohnel@bethesdamagazine.com.