Is Decertification Of Bad Cops An Answer to U.S. Policing Flaws?

Monday, October 4, 2021 - 7:08am

by William H. Freivogel and Paul Wagman

Sixty-two years ago, California became the first state to decertify police officers who had engaged in serious misconduct, a way to stop abusive officers from "wandering" from department to department only to reoffend. Strong police union opposition defanged decertification in the 1990s and dismantled it in 2003. Last week Gov. Gavin Newsom signed a new law resurrecting decertification after a three decade hiatus. That leaves only three states — Hawaii, New Jersey and Rhode Island — without decertification to stem the flow of wandering cops.

The new California law is not everything reformers wanted. In response to police lobbying, the law was weakened before passage to require the state decertification board to have a two-thirds majority before taking away an officer's badge. Reformers still praise the final measure.

The law is called the Kenneth Ross Jr. Decertification Act of 2021, named after a man shot and killed in 2018 by Gardena Officer Michael Robbins. Robbins chased Ross and shot him saying he feared for his life. It turned out Robbins had shot three suspects under questionable circumstances at his previous police job in Orange County.

State Sen. Steven Bradford, who grew up near the park where Robbins killed Ross, called Robbins' rehiring in Gardena an example of the "wash, rinse, repeat" cycle of problematic officers. It took an intense, two-year legislative fight for Bradford to overcome opposition from the state's powerful police unions and pass a decertification law.

One of the most dramatic examples of the consequences of wandering cops was the Tamara Rice killing in 2014.

Timothy Loehmann wanted to be a police officer like his father. He got a job in Independence, Oh/. but it didn't go well. His supervisors allowed him to quit after he suffered a "dangerous lack of composure" during firearms training.

The department concluded he would "not be able to cope or make good decisions" under stress. The deputy chief wrote Loehmann "could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal."

Cleveland police did not check on Loehmann's history in Independence before hiring him. Ohio law required conviction of a felony before an officer would lose his badge. So it was Loehmann who responded in the fall of 2014 to the Cleveland park where 12-year-old Tamir Rice was playing with what turned out to be a toy gun. Loehmann shot him dead.

There is a straightforward solution to the problem of wandering cops, experts say:

- A national database open to the public with the names of all officers who have engaged in misconduct.

- A requirement that all law enforcement agencies consult that database before hiring.

That solution has proved elusive. Most states keep the names of disciplined officers secret and the vast majority of departments do not fully investigate the background of an officer they are hiring.

Police chiefs, who have found it difficult to rid their departments of problem officers, generally support stronger laws. Police unions oppose them, arguing that past allegations — many of them denied — shouldn't follow officers throughout their careers.

Derek Chauvin's murder of George Floyd illustrates that officers who come to public attention in abuse cases often had a string of prior allegations. Chauvin had 18 prior complaints in the Minneapolis Police Department, two of which led to discipline, according to CNN.

A study of wandering officers in the Yale Law Journal last year provided the first systematic look at how prevalent they are. The answer: Wandering officers are prevalent and often run into disciplinary problems after they are rehired, according to authors Ben Grunwald, an assistant professor at Duke University School of Law, and John Rappaport, assistant professor at the University of Chicago Law School.

The professors studied data in Florida, a state that took important steps to impose accountability on police officers after the Liberty City riots of 1980 left 18 dead. Those riots followed the acquittal of officers prosecuted for the death of Arthur McDuffiie, a 33-year-old Black salesman beaten by police after they chased him for traffic violations on his black and orange Kawasaki motorcycle. The four officers who were tried had 47 previous citizen complaints against them.

Partly as a result, Florida enacted a strong police decertification law in 1980 to prevent officers with discipline problems from moving from department to department.

Despite the decertification law, many officers fired in one department are rehired and again run afoul of police discipline, the Yale study found. It concluded:

"In any given year over the last three decades, an average of roughly 1,100 full-time law enforcement officers in Florida walk the streets having been fired in the past, and almost 800 having been fired for misconduct, not counting the many who were fired and reinstated in arbitration. These officers...are subsequently fired and subjected to 'moral character' complaints at elevated rates relative to both officers hired as rookies and veterans with clean professional histories."

The International Association of Directors of Law Enforcement Standards and Training, an Idaho-based nonprofit, has created a national response to the problem of wandering cops: the National Decertification Index (NDI). Forty-five states provide records of misconduct on 30,172 officers so that states can check the NDI database to see if an officer applying for a job has had previous problems.

The NDI database is badly flawed, experts say. For one thing, most departments don't check it before hiring. For another, the names in the database are not public. For a third, some of the biggest states in the country are not in the system.

The NDI database has another flaw. It omits police misconduct that is not serious enough for an officer to be decertified. In many states, only conviction of a felony leads to decertification. So serious misbehavior short of a felony is not included in the database.

The nation takes a much more rigorous approach to its regulation of health care practitioners, who also deal in life and death but don't carry guns, says Roger Goldman, a professor emeritus at Saint Louis University School of Law and expert on police licensing.

The congressionally mandated National Practitioners Data Bank is truly national and far more informative. It contains malpractice judgments, loss of hospital privileges and adverse medical board actions. The police database should be as informative, Goldman argued in a 2016 research paper.

The President's Task Force on 21st Century Policing, commissioned by President Barack Obama after a series of police killings in 2014, called for the federal government, through the Department of Justice, to follow Goldman's recommendation to partner with and beef up the NDI database, making it truly national. Police unions, however, opposed this recommendation as unfair to officers who face false allegations.

"It's a real mess for chiefs of police departments," says David A. Harris, a law professor at the University of Pittsburgh. "You go to any chiefs of police conference and every table has the same discussion: 'I fired this guy and we got him back because it was overturned in union arbitration.'"

Red states such as Florida and Georgia lead the way in decertifying officers with past problems, while some of the biggest and bluest, such as New Jersey and until now California have been resisted decertification. Rhode Island also lacks decertification. Hawaii has a decertification law but doesn't fund it. And Louisiana has a law but has had only a half dozen decertifications over the past decade.

The bluer states have lagged because their police unions are so strong and oppose expanding the database into a comprehensive repository of police misconduct, Goldman says.

The NDI database publishes a brochure illustrating the potential of an effective database. It features the case of Sean Sullivan, who was caught in 2004 kissing a 10-year-old girl on the mouth in Coquille, Or. He was convicted on two counts of harassment and ordered to surrender his Oregon police officer certification and never work as a police officer. Oregon entered his name into the NDI database.

That didn't stop Sullivan from his sexual attacks as a law enforcement officer. First he tried to get a job in Klawock, Ak., claiming he had never been convicted of a crime. Then he not only got a job as a police officer but as the police chief in Cedar Vale, Ks. In Cedar Vale he was investigated for a relationship with a 13 or 14-year-old girl. The girl refused to cooperate with the investigation and Sullivan eventually was convicted of lesser charges of burglary and criminal conspiracy. When the NDI database record from Oregon came to light, Sullivan was fired from police work. He later ended up in prison in Washington state for drug crimes.

In two cases in the Midwest, police departments hired officers they knew had previously been fired by other departments.

Kansas City, Mo.,fired officer Kevin Schnell in 2008 after he refused to obtain emergency medical care for a woman who pleaded for help more than a dozen times during a traffic stop because she was having a miscarriage. "You can go to the hospital when we're done with you, because you're obviously not telling us everything here," Schnell told her. He said the woman from Sudan "was just giving me a long line of excuses" because she had "jailitis."

Instead of sending her to the hospital, he sent her to jail, where she passed a blood clot and had a miscarriage the next morning. Kansas City fired Schnell for failing to call emergency medical aid. He went to court in 2010 to contest the firing. He said his comments were not discourteous and that the department was violating his due process rights. The court disagreed. Two other police departments, including Independence, hired Schnell anyway.

In 2019 the police chief of Strawberry Point, Iowa, asked the city council to hire Jeremiah Owens even though he later acknowledged that he knew Owens had been fired three years earlier by the Laramie, Wy., police department. Owens had made homicidal threats on his cell phone and failed to report his brother's involvement in a burglary. The chief and the city council in Strawberry Point went ahead with the hiring. After Owens was on the job for 11 months, the Iowa Law Enforcement Academy denied him a certificate when it found out about the Laramie firing. Owens has gone to court claiming his due process rights have been violated.

"SECOND CHANCE" PD - McFARLAND, CA

The consequence of a lack of police decertification during the past three decades in California played out in McFarland, Ca. McFarland, 25 miles north of Bakersfield became a second chance, sometimes last chance, for officers fired or forced out elsewhere. That included two chiefs.

The extent of the problems in McFarland became clear when California passed Senate Bill 1421 in 2018, requiring the release of records for officers convicted of habitual sexual abuse and use-of-force violations. A media consortium found that 80 officers in the state had been convicted of crimes. All told, 630 people who had been officers since 2008 had criminal convictions.

In the two years after the McFarland department was created in 2009, it had hired 13 officers who had been forced out of previous jobs across the country. Chief David Oberhoffer, a veteran of the San Francisco department, hired most of them, including Ron Navarreta. Navarreta had been fired from the Inglewood Police Department because of a child pornography investigation. Police records showed he admitted to viewing pictures of naked children, but his computer could not be located and no charges were filed.

Other officers hired in McFarland included an officer accused of having sex with a teen Police Explorer scout, an officer accused of threatening to put women in jail if they didn't have sex with him, an officer involved in a Los Angeles Police Department burglary ring, an officer who filed a bogus insurance claim for a car dumped in Mexico and an officer convicted of pulling a gun on a stepdaughter's friends.

After Oberhoffer, the city promoted Gregory Herrington, who was hired in McFarland despite a DUI conviction in Georgia and having been fired for dishonesty in Banning, a Riverside County department. Herrington, a former Marine, came in vowing to improve the department's reputation, which he described as "in the toilet bowl." But he ended up hiring three buddies from Banning who were also involved in dishonesty.

Leonard Purvis, the police chief who had cleaned out Banning, couldn't believe eight of his dishonest officers ended up in McFarland, two as chiefs. He wrote to the toothless state Peace Officers Standards and Training office. It replied: "The decision whether to appoint an individual as a peace officer rests with the agency head. Differences of opinion can exist regarding whether or not an individual should be appointed as a peace officer."

THE MUNI-SHUFFLE — ST. LOUS TO ST. ANN, MISSOURI

In St. Louis, wandering police are so common that there is a name for the phenomenon — "the Muni-Shuffle."

St. Ann, a small suburb of about 14,000 near Lambert Field airport, is the refuge for many officers who have shuffled their way out of bigger departments in St. Louis and St. Louis County.

One was Eddie Boyd III, who as a St. Louis officer pistol-whipped a 12-year-old girl in the face in 2006. He said it was an accident. In 2007, he struck a child in the face with his gun and handcuffs before falsifying a police report, according to Missouri state decertification records. Boyd faced a state decertification order, but a jury ruled in his favor in a lawsuit involving one of the pistol-whipping incidents and he was allowed to keep his badge.

St. Ann hired Boyd. From there Boyd shuffled his way to nearby Ferguson in 2012, and was on the force leading up to the 2014 death of Michael Brown. A Ferguson woman sued Boyd saying he arrested her for asking for his name at the scene of a traffic accident. He was also cited by the Justice Department in its finding of a pattern of unconstitutional policing.

He issued nine citations to Fred Watson, an employee of the National Geospatial-Intelligence Agency. Watson had just finished playing basketball and gotten into his car when Boyd arrived to cite him for not wearing a seat belt and a host of other unfounded violations. Watson said Boyd drew his gun and pointed it at Watson's head for using his cell phone. Ferguson police responded that they only hire officers after they "undergo extensive investigation."

Another St. Louis police officer who found refuge in St. Ann was Christopher Tanner, who shot Black former St. Louis officer Milton Green at Green's home in 2017. A police chase sped into Green's neighborhood while he was off duty working on his car in his driveway. A white officer arrived and ordered Green to the ground, forcing him to drop his service revolver. No sooner had that officer allowed Green to get up and retrieve his gun whenTanner arrived, told him to drop the pistol and immediately shot him. Green sued the city in 2019.

Tanner was soon joined in St. Ann by Jonathan Foote, who resigned from the St. Louis Police Department after a traffic stop led to a crash where a bystander was killed. Then there was Christopher Childers, fired from the St. Louis department after assaulting another officer by firing a stun gun at her in her patrol car. He had also initiated a chase that resulted in the death of a bystander. St. Ann fired Childers recently for overdosing on opiods.

St. Ann's elected Police Chief Aaron Jimenez also hired Officer Ellis Brown after he was forced out of the St. Louis Police Department and his state certification was suspended. Brown lied about a 2016 incident where he tailed a car, which accelerated, crashed and started burning. Brown left the scene instead of calling for help and then claimed in a report that he hadn't been there. Brown was also one of two officers who shot Kajieme Powell to death in St. Louis after a shoplifting complaint in 2014. He said he acted in self-defense because Powell had a knife. In addition, 19 of Brown's questionable search warrants were thrown out because he used the same language in each.

After St. Ann hired him, Brown was convicted in June 2021 in federal court of violating the civil rights of a suspect he attacked there. Bank video captured Brown repeatedly kicking a suspect who lay prone after a 20-minute chase.

In 2017, St. Ann hired Mark Jakob, one of two St. Louis County police officers fired for lying about a high-speed chase that ended in two deaths. The officers at first claimed not to have been involved in the chase, but an activist group released video showing they were.

Jimenez's department favors aggressive tactics such as police chases. Despite its small size, St. Ann police conduct as many high-speed chases as the nearby St. Louis and St. Louis County police departments, which are 20 times bigger. Jimenez has said publicly that he checks on officers' backgrounds, but hired officers like Tanner and Brown because they hadn't been fired.

There is one chase a week in St. Ann and one crash every two weeks, sometimes with deadly consequences, the St. Louis Post-Dispatch reported.

Finally, St. Ann hired ex-Iraqi war veteran Joshua Daniel Becherer, a member of the St. Louis Police Department SWAT team that killed Isaiah Hammett in a controversial no-knock raid in 2017. Becherer resigned from the St. Louis department in 2017 after his arrest for domestic assault for pointing a loaded rifle at a woman's face and threatening to kill her.

Becherer is a good example of how an officer's past misdeeds are kept secret from the public.
None of this information about Becherer was released by the Peace Officer Standards and Training (POST) office in Missouri. In fact, the only things that are open to the public about police officers under Missouri's Sunshine law are the names of officers, license statuses, and commissioning or law enforcement agencies where officers are employed.

A LIFELONG CRUSADE

Goldman, the veteran law professor, has weighed in on the Muni-Shuffle in St. Ann, the abuses in McFarland and Cleveland's mistake in hiring Loehmann — all during a four-decade crusade against wandering cops. The 2014 Black Lives Matter protests after Ferguson and the 2020 George Floyd uprisings have redoubled the attention to the problem of wandering cops that leads people to Goldman's doorstep.

Goldman's crusade began 41 years ago this past March, when two bullets from Joseph Sorbello's revolver tore through the body of an alleged car thief, Roy Wash, in a parking lot behind a store at in . in Maplewood, Mo. The shots killed the alleged thief, but they triggered an epiphany for the still youthful law professor.

Goldman, now 79, read the March 21, 1980, account in the St. Louis Post-Dispatch of Wash's shooting the day before. The story reported Sorbello as saying that after he surprised the alleged thief in the act of stealing his car, Wash reached inside his waistband as if for a gun, but no gun was found. It also reported that the .45-caliber weapon Sorbello had used to kill Wash had been his by dint of his employment as a part-time officer in the police force of Bridgeton Terrace.

Finally, it reported that Sorbello had been fired in 1977 from his full-time job at the Maplewood Police Department after allegations that he had lied to a grand jury, tampered with evidence and brutalized prisoners.

Sorbello's own former colleague had testified during the Maplewood episode that he had seen Sorbello stick the muzzle of his gun in a prisoner's mouth and order him to suck on it. While questioning at least two other prisoners, one a 16-year-old boy, Sorbello allegedly pointed his gun at their heads and pulled the trigger in a one-way game of Russian roulette. Later, another Maplewood police officer engaging in the same sport shot another prisoner, Thomas Brown, to death in police headquarters.

How was it, Goldman wondered, that Bridgeton Terrace hired someone with that kind of record — how could he have still been certified to be a policeman under Missouri law? Other professions – from medicine to the law to cosmetology – took steps to decertify bad practitioners. Yet the police, who have life and death power over all of us, did not?

Checking Missouri law, Goldman found, no, they did not. Once someone had been certified or licensed – the two terms are synonymous – to be a policeman in Missouri, the state had no law that provided for the withdrawal of that license: even if the person had subsequently committed a felony.

If the state can take away the license of a barber for misconduct, surely it should be able to do so for a police officer, said Roger Goldman

Goldman realized he was on to something. He went to Florida — which did decertify police officers for misconduct — and began to dig. He wrote a law journal article concluding, "Decertification offers perhaps the best chance for states to take responsibility for removing unfit police officers from the profession."

Goldman started his legislative campaign in his home state. Clarence Harmon, a former head of Internal Affairs for the St. Louis Police Department and later chief and mayor, testified that as many as 90% of officers who leave the St. Louis department under shady circumstances simply get new jobs with municipalities in St. Louis County.

The new Police Officer Standards and Training (POST) law passed and took effect in 1988.
Since 1988, Goldman estimates, Missouri has decertified over 1,000 officers. In 2015, according to figures from a survey conducted by a researcher at Seattle University, Missouri revoked 53 licenses — more than all but seven other states in the country that year. Despite that record, Goldman says, the Missouri law still needs work — including an expansion to cover not only police officers, but also prison guards, probation and parole personnel and other corrections officers.

A current police decertification dispute in Texas — the latest Goldman has weighed in on — is a reminder that decertification is no panacea. In Texas, officers who engaged in wrongdoing used their police licenses to bargain themselves out of prison time. They surrendered their license for reduced charges or probation.

An investigation by KXAN found that in 245 cases from 2015 to 2018, officers had "used their licenses to leverage a lesser sentence in a plea bargain. More than 30 officers surrendered their licenses in lieu of prosecution or to halt an investigation."

One was Larry Linley, a DA investigator in Fort Bend County. He was originally charged with four counts of sexual assault for repeated instances of improperly touching an 11-year-old and taking pornographic videos. In 2017 he pleaded guilty to a reduced charge of one count of injury to a child in return for surrendering his license. He got no additional jail time.

Legislation designed to give the Texas decertification board more power has been introduced in the legislature but the strongest proposals are bottled up. The Combined Law Enforcement Associations of Texas (CLEAT) testified against the bills, stating, "All of the legislation we see this session is a direct attack on working cops and is punitive in nature."

Goldman responds to criticisms such as CLEAT's by saying, "My work is not anti-cop. It's pro-good cop." And because of that, both law enforcement organizations and civil liberties groups can find common ground.

"If the state can take away the license of a barber for misconduct," Goldman said in a recent interview, "surely it should be able to do so for a police officer."
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Freivogel and Wagman are former reporters for the St. Louis Post-Dispatch who covered the death of Thomas Brown in the Maplewood Police Department headquarters in 1977. Emily Gross, a Pulitzer intern and graduate of Washington University in St. Louis, contributed to the Missouri reporting, and Meredith Howard, a senior at Baylor, to the reporting on Texas. Karen Kurosawa of Stanford University contributed to the reporting on California. For more stories on legal roadblocks to police accountability, go to: https://pulitzercenter.org/projects/roadblocks-police-accountability

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