Editor’s note: The following is an excerpt from a recent report from the Manhattan Institute entitled “Wandering Cops: How States Can Keep Rogue Officers From Slipping Through the Cracks” by Dorothy Moses Schulz. The report examines the issue of “wandering cops” — officers who leave one police department after alleged misconduct and are then hired by another agency — discussing the problem of wanderers and how they pose a threat to administrative police reforms; how staff shortages, budget pressure and low morale are but a few of the many factors that have enabled these officers to move from department to department; and existing research on the issue of wanderers. In the section of the report that follows, reprinted with permission, Schulz proposes a number of recommendations to address the problem and related concerns.
Who should be responsible for addressing the problem of wandering cops? How should they go about doing so? As the research on wanderers has continued to develop and the problems associated with wanderers have gotten more attention, a handful of policy recommendations have emerged as particularly worthy of consideration:
- Make decertification easier to achieve by POSTs.
- Expand participation in the National Decertification Index (NDI).
- Launch more state-based decertification indexes.
- Ensure that state indexes report other contextualizing information (beyond certification status) that will allow departments to make better decisions when considering certified officers who left previous employers under a disciplinary cloud.
- Include decertification index inquiries in police background-check processes.
- Require POSTs to report on both “delisting” and decertification.
States should require police agencies to report to POST any changes in an officer’s employment or disciplinary status within 30 days of the change.
Decertification is not magical; it simply revokes someone’s license to police. Just as someone with a revoked driver’s license may not legally drive, a police officer whose license to police has been revoked (who has been decertified) is not eligible to exercise police authority.
Since it is the state that grants certification, the state should have the authority to decertify by revoking certification. The most realistic and least costly solution to curtail the problem of wandering police officers is to expand the existing authority of POSTs by clarifying their decertification authority.
Although [Roger] Goldman and [Steven] Puro believe that state POSTs are more competent than individual police department or civilian review boards to control decertification, Goldman has long championed a national database of decertified officers. His model is the American Bar Association’s (ABA’s) National Discipline Data Bank, which the legal profession uses to make information available to state bar admission committees.
Goldman was a member of the President’s Task Force on 21st Century Policing, which, in 2015, recommended such a national database of decertified officers. The recommendation was carried over into the George Floyd Justice in Policing Act, which, in addition to a decertified officer list, would have mandated a national use-of-force registry. But the act, despite passing the House in a party-line vote of 220–212,Lance Gooden (TX), the only Republican to vote yes, claims that he pressed the wrong button and changed the record to reflect his opposition. See Jason Silverstein, “The Only Republican to Vote for … Continue reading never reached the floor of the Senate.
Currently, the International Association of Directors of Law Enforcement Standards and Training (IADLEST) maintains NDI as a voluntary directory of decertified officers. Any agency, no matter its size, may request an NDI inquiry before hiring anyone who claims to have previously been a police or peace officer. According to its website, the index contained about 31,000 actions reported by 46 state-certifying agencies as of November 2021. IADLEST’s website currently includes a Request for Information to enhance information technology that would expand the reach of the database.See International Association of Directors of Law Enforcement Standards and Training, “About NDI.”
Those who favor a national decertification index say that NDI is insufficient because not all states participate, departments are not required to submit names of officers who leave their employ or to check names of applicants for employment, and the list is not available to the public.
States can address the first two concerns by making participation in NDI mandatory. This would not only curtail intrastate wanderers but would also limit the much smaller number of rogue officers who gain employment in other states. Because police departments are public agencies whose officers must already be state-certified, mandatory compliance can be achieved more easily than regulations imposed on private individuals or entities such as attorneys or law firms.
The NDI list does not have to be available to the public in order to serve its purpose — and there are several challenges associated with making it public. Because individual members of the public do not hire police officers, it is unclear what purposes the public disclosure of NDI information would serve. There are also due-process considerations regarding how much of a police officer’s background or status should be publicly available.
There are legal and collective bargaining issues to consider if NDI were to be made public. Many police resignations are negotiated by unions, partly to protect an officer’s employment records. In some cases, departments accept a resignation rather than proceed with a disciplinary case that they might not win. In such circumstances, an officer or the union might refuse to negotiate a resignation if it includes a public record of decertification.
Dismissals are also frequently overturned by court cases, union grievances, or civil service appeals. Since these may occur years after an officer has been terminated, legislation or union agreements should include whether and how an officer can or should be recertified. Another consideration: decertification efforts cannot ignore obligations established by existing collective bargaining agreements. For instance, some departments may be required by a labor agreement to keep an officer on staff in a nonenforcement capacity until a civil or criminal case is resolved.
Depending on how contracts are worded, this could prevent a department from providing information on an officer to its POST and could limit the POST’s authority to turn over to NDI personnel information that would be public.
Contentious though they are, none of the public disclosure questions needs to be answered immediately. Nor do they present obstacles to state legislators following the recommendations of IACP to strengthen NDI.
States should require police agencies to report to POST any changes in an officer’s employment or disciplinary status within 30 days of the change. This should include not only dismissals but also retirements and resignations of personnel who are under investigation or who departed under less than honorable circumstances. Because of the types and lengths of appeals processes, any legislation should include provisions for reviewing and revising records on a regular basis.
States should also require, as part of their background investigation, that an NDI inquiry be made (either by the hiring agency or the state POST) about any candidate who claims prior police or peace officer employment.
The authority of POSTs to institute decertification and to submit information to NDI must be clearly stated in enabling legislation. This will require states to strengthen the authority of their POSTs. Many states have already passed enabling legislation; others have seen bills proposed that would do so. To assure more consistent success for POSTs implementing their new powers, legislation must include a precise definition of “listing” versus “decertifying.”
The authority of POSTs not to merely list but to actually decertify officers must be outlined in state law. The difference centers on whether a POST is authorized to list only officers who have been reported by their department as no longer employed or whether an officer who has been reported as terminated for cause can be prevented from exercising police authority elsewhere in the state. The law should provide clear rules for which criminal or civil offenses or departmental violations trigger decertification; whether decertification is automatic or whether it may be decided by a panel of law-enforcement and civilian personnel; whether officers have the right to appeal a decision; and how decertified officers are to be recertified if they are found not guilty in a criminal or civil procedure or are returned to full duty based on legal or union appeals.
New York State provides an example of how imprecise language in this regard can create confusion. The Division of Criminal Justice Services (DCJS) maintains a registry of police and peace officers. Although departments must submit semiannual employment reports to DCJS, a recent New York State Bar Association (NYSBA) report criticized New York for not having authority to decertify rogue officers. NYSBA found the registry ineffective because, although it lists fired officers, it does not preclude them from keeping their certifications, which allows them to work elsewhere.New York State Bar Association, “Report & Recommendations of the Task Force on Racial Injustice and Police Reform,” June 2021.
Police and Peace Officer Licensing Act bills currently before the state legislature would clarify these issues. They would require the state, as of January 1, 2023, to issue five-year licenses to serving officers and would create an independent licensing board to investigate misconduct allegations and to revoke or suspend licenses for predefined acts of misconduct. Officers whose licenses are suspended or revoked would be barred from working as police or peace officers in any agency or municipality in the state.Police and Peace Officer Licensing Act; see https://www.nysenate.gov/legislation/bills/2021/ S6219/amendment/A.
Similar laws have been enacted elsewhere. In Iowa, since 2020, officers fired for misconduct are barred from being hired elsewhere in the state.Veronica Stracqualursi, “Iowa Governor Signs Police Reform Bill That Was Passed in One Day,” CNN, June 12, 2020. And Massachusetts, which lacked a police certification requirement, established a POST commission to oversee certification and decertification of police officers and to investigate allegations of police misconduct. Under the new law, a police officer will receive a three-year renewable license that can be revoked for defined violations and that will result in the officer’s name being placed in a public database of decertified officers.Massachusetts, Senate Bill 2963.
In October, California granted decertification authority to its POST as part of a package of criminal-justice laws. One of the laws bars former officers within the state who are convicted of misconduct from returning to a police officer position, unless their conviction is later reversed. As with the proposed New York State law, California established a commission to “investigate and determine the fitness of any person” serving as an officer and requires that all records of investigations and decertification of police officers be public for 30 years, with only certain personal data redacted to protect officers’ privacy.Cheri Mossburg and Steve Almasy, “California Police Reform Laws Create Decertification System for Officer Misconduct,” CNN, Sept. 30, 2021.
The full version of “Wandering Cops: How States Can Keep Rogue Officers From Slipping Through the Cracks” is available to download from the Manhattan Institute website at tinyurl.com/2jx52nv7.
|1||Lance Gooden (TX), the only Republican to vote yes, claims that he pressed the wrong button and changed the record to reflect his opposition. See Jason Silverstein, “The Only Republican to Vote for George Floyd Police Reform Act Says He ‘Accidentally’ Pushed the Wrong Button,” CBS News, March 4, 2021.|
|2||See International Association of Directors of Law Enforcement Standards and Training, “About NDI.”|
|3||New York State Bar Association, “Report & Recommendations of the Task Force on Racial Injustice and Police Reform,” June 2021.|
|4||Police and Peace Officer Licensing Act; see https://www.nysenate.gov/legislation/bills/2021/ S6219/amendment/A.|
|5||Veronica Stracqualursi, “Iowa Governor Signs Police Reform Bill That Was Passed in One Day,” CNN, June 12, 2020.|
|6||Massachusetts, Senate Bill 2963.|
|7||Cheri Mossburg and Steve Almasy, “California Police Reform Laws Create Decertification System for Officer Misconduct,” CNN, Sept. 30, 2021.|