Why States Need to License Police


In the last few weeks, there have been several newspaper articles on law enforcement officers who, have escaped or overcome disciplinary action despite allegations of serious misconduct.

The Brooklyn (NY) District Attorney's office has been reviewing allegations that retired New York Police Department Detective Louis Scarcella and his partner, Stephen W. Chmil, roughed up suspects and invented confessions to obtain convictions in cases stretching back over 20 years. According to The New York Times, investigators were finally able locate a witness to one such allegation in October, but a civil rights lawyer claimed “progress is very slow.” (Scarcella has denied all the charges.)

Meanwhile, the Los Angeles Times reported that Los Angeles County Sheriff Lee Baca hired dozens of officers from a disbanded county police force in 2010, even though investigators had found significant misconduct in their backgrounds. After initial denials, Sheriff Baca admitted there were problems in the hiring process.

“It could have been done better,” he conceded last week.

And in a recent feature article, The New York Times reprised a 1995 case in which a plainclothes Boston police officer named Michael Cox Sr., was mistakenly knocked unconscious by fellow officers who were unaware he was working undercover . The story, which focused on the impact the case made on his son, now a running back for the New York Giants, recounted how Cox was attacked while pursuing murder suspects.

Three officers were found liable, the city settled with Cox for $900,000, and the officers were terminated from the department. But, as the newspaper noted, one of them was reinstated by an arbitrator, with back pay.

He was later involved in misconduct, was terminated once more—but again reinstated by an arbitrator, with back pay.

What each of these stories have in common is that they all arose in states—California, Massachusetts and New York—that do not have laws governing the licensing of law enforcement officers who engage in serious misconduct. Thus, it is up to each department to decide whether to apply discipline—and what kind of punishment, if any, is merited. Similarly, New Jersey, Hawaii and Rhode Island have no police licensing rules.

The remainder— 44 states—do have the authority to remove the licenses of unfit police officers.

The fact that some of the country's largest or most populous states don't follow this pattern should concern legislators—and all of us.

We take it as a given that any profession or occupation that involves interaction with the public will be regulated by a state in order to protect the public by insuring competence.

In every state, accountants, architects, attorneys, cosmetologists, doctors, public school teachers and a hundred other professions and occupations are not only required to undergo training, but also to meet state selection standards, take a licensing exam, undergo continuing education and—if they commit serious misconduct or show that they are clearly unfit to serve— have their licenses or certificates revoked by the regulatory entity.

For historical and political reasons, police officers and related criminal justice officers have not been so regulated, even though there is arguably more of a need for a system of licensing and removing their licenses: no other occupation has the authority to use deadly force, arrest and search; and, unlike other regulated professions, like lawyers, citizens do not get to choose their law enforcement providers. The local police chief or sheriff hires the officers.

What's the justification for denying the states the authority to revoke power?

One opponent of decertification is the former executive director of the California Peace Officer Standards and Training Commission (POST), which used to have a limited revocation power. He stated recently that putting the decision in the hands of a statewide body creates divisiveness, arguing that local police chiefs and sheriffs need discretion to make hiring and firing decisions since they're the ones who best know their circumstances.

He added that California's training program, along with its standards for accepting law enforcement personnel are among the best in the country, making a certification process redundant. Rogue officers, he claims, are kept off the force from the beginning.

The case of the Los Angeles County Sheriff's Department suggests that isn't always the case.

There are two major issues in determining the scope of revocation. First, what types of criminal justice officers should be covered; and second, what kind of misconduct should trigger revocation?

With respect to who should be covered, almost all statutes cover law enforcement personnel such as police officers, deputy sheriffs and member of the state patrol. About one-half of the 44 states also have jurisdiction over correctional officers. A few even include private security officers.

As for the scope of coverage: about 20 states decertify only for a criminal conviction—all felonies and certain misdemeanors. But the other 24 don't require a conviction and the difference in those states is whether to use general language such as gross misconduct or commission of a crime vs. specific language, e.g., commission of perjury, abuse of drugs, etc.

About 27,000 officers have been decertified since decertification became a widespread practice in 1960. The information comes from a databank known as the IADLEST (International Association of Directors of Law Enforcement Standards and Training) National Decertification Index (NDI), which includes the 17,000 officers who have been decertified in the 36 states that submit data to the NDI but does not include the names of the 10,000 officers from the 8 states that don't submit data. .

Efforts to enact laws in the six non-licensing states should be supported by groups that normally are adversaries. From law enforcement's perspective, the ability to remove a license from someone not worthy of holding it demonstrates both accountability and seriousness.

And from the public's perspective, trust and confidence can only come about if we are assured that police live up to a professional code of conduct.

Roger Goldman, Callis Family Professor of Law at Saint Louis University School of Law, is among the speakers scheduled to address a conference Thursday at John Jay College of Criminal Justice on “Respectful and Effective Policing,” sponsored by the John Jay Center on Race, Crime and Justice. He welcomes comments from readers.

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