A REFORM TO POLICE DEPARTMENT HIRING: PREVENTING THE TRAGEDY OF POLICE MISCONDUCT.

• Author: Doherty, Owen

CONTENTS INTRODUCTION I. POLICE MISCONDUCT DEFINED A. Criminal Activity B. Corruption C. Unconstitutional Activities D. Racial Profiling and Bias II. THE CHALLENGES OF PREVENTING HIRING OFFICERS WITH POOR HISTORY A. Confidentiality Agreements B. Police Unions, Police Culture, and the "Blue Wall of Silence". C. Certification and Licensure 1. Consistency 2. Power of State Boards 3. Enforcement 4. Lack of Efficacy Across Borders D. Federalism and the Decentralization of Police Departments E. Law Enforcement Officers' Bill of Rights F. The Inadequacy of Alternative Remedies III. A COOPERATIVE FEDERALISM SOLUTION A. Constitutional Powers and Challenges 1. The Spending Power 2. Challenges B. The Legislation C. The Minimum Standards CONCLUSION INTRODUCTION

On November 22, 2014, Officer Timothy Loehmann tragically shot and killed Tamir Rice, a twelve-year-old boy, in Cleveland, Ohio. (1) The Cuyahoga County prosecutor declined to recommend charges against Loehmann for the shooting. (2) What was lost in the story surrounding this tragic death was not the fact that Officer Loehmann should have faced charges, but that he should not have been employed as a Cleveland police officer in the first place. When looking at his previous stint as a police officer, it becomes clear that he was not only unfit to serve and protect the community of Cleveland, but that he should have been prohibited from serving as a police officer anywhere.

In 2012, Loehmann served in the Independence Police Department, only thirteen miles south of Cleveland, for five months. (3) During the first four months, he trained in the Cleveland Heights Police Academy. (4) Personnel records from his time in Independence show that by December of 2012, the Independence Police Department began internal proceedings to fire Loehmann. (5) According to the records, he had exhibited a pattern of emotional instability, immaturity, and an inability to follow basic instructions during firearms training at the Academy. (6) Before the Independence Police Department fired him, however, Loehmann resigned citing personal reasons. (7)

When the Cleveland Police Department hired Loehmann, it did so without examining his personnel records from Independence as part of its background check. (8) When the hiring officers called the Independence human resources department, the director did not disclose the issues that led to Loehmann's resignation. (9) A cursory glance through Loehmann's personnel records, however, would have shown the hiring officers that he had displayed a disturbing lack of maturity. (10) In fact, Loehmann's direct supervisor and Independence Deputy Chief of Police James Polak said, "I do not believe time, nor training, will be able to change or correct these deficiencies." (11) After resigning from Independence, Loehmann attempted to secure employment at four other police departments. (12) Each police department rejected Loehmann before Cleveland hired him. (13) How, then, did these four police departments know not to hire him when Cleveland did not?

Tragically, this is an oft-repeated problem across the United States. In 2004, Sean Sullivan, a police officer in Oregon, was barred from a future career as a police officer as part of his sentence for kissing a ten-year-old girl on the mouth. (14) Three months later, Cedar Vale, Kansas hired him as their police chief. He was later investigated for an alleged sexual relationship with an underage girl. (15) Sullivan was eventually convicted of burglary and criminal conspiracy. (16) Officer Eddie Boyd III resigned from the St. Louis Police Department after two incidents: he struck a twelve-year-old girl with his gun in 2006; and, after doing the same to a young boy in 2007, he falsified the subsequent police report. (17) Officer Boyd, now with the Ferguson Police Department, is the subject of a lawsuit stemming from an incident in which he allegedly arrested a woman who asked for his name after a traffic accident. (18)

In the 1990s--at the height of the unrest following the Rodney King beating--the mayors of Los Angeles and New York City created commissions to investigate police department corruption and misconduct. (19) The Christopher Commission of Los Angeles and the Mollen Commission of New York City discovered widespread issues of corruption, racial profiling, excessive use of force, and other forms of police misconduct. (20) They also discovered an appalling lack of intradepartmental accountability. (21) In the nearly two decades since these commissions, much has been said about what must be done to prevent "bad apple" police officers from leaving one jurisdiction to serve in another. Unfortunately, little progress has been made in implementing effective responses to this most pressing of issues.

The middle part of the 1990s was marked by heightened public scrutiny of police-community relations, brought on by the Rodney King beating and the Christopher and Mollen Commissions. As a result, during the 104th Congress, Representative Harry Johnston and Senator Bob Graham, both of Florida, introduced bills that would have rendered this discussion moot. The Law Enforcement and Correctional Officers Employment Registration Act of 1996 would have amended the Omnibus Crime Control and Safe Streets Act of 1968 to create a national clearinghouse for law enforcement employment data. (22) The findings section of both versions of the act explained why a clearinghouse was needed: "[T]here have been numerous documented cases of officers who have obtained officer employment and certification in a State after revocation of officer certification or dishonorable discharge in another State." (23)

The clearinghouse, overseen by the Department of Justice, would have listed all previous employment in law enforcement agencies, for all law enforcement officers. (24) Under the Act, every applicant for a law enforcement position, including those positions within police departments--both elected and appointed--and state correctional facilities, would have been required to fill out an authorization for release of records during the application process. (25) The records would include the applicant's name, date of birth, Social Security number, and other vital information, as well as whether the person's state law enforcement certification had been revoked. (26) The Act also allowed for immunity from civil liability for disclosure by officers or departments that, in good faith, complied with the provisions of the bill. (27)

Both bills never made it past committee. (28) During a hearing on the House version of the bill, then Representative Charles Schumer outlined many of the criticism that these bills faced. Along with many others, he thought that the database would be an invasion of officers' privacy, and that it was an unnecessary solution to a non-existent problem. (29) He also criticized the broad overreach that the bill presented: "When we're concerned only about so-called rogue officers, why not just list the few bad officers?" (30) Another criticism, from the National Troopers Coalition, was the uncertainty regarding the confidentiality of the information provided to the database. (31) Further issues were raised about the procedural due process rights of police officers. (32) This mainly took the form of concerns regarding whether an officer would have notice of what information would be reported and whether an officer would have the right to appeal the information that appears on his or her disciplinary record. (33)

Not all police organizations opposed the bill, though. In fact, the International Association of Chiefs of Police ("IACP") was the first to urge Representative Johnston to introduce the bill. (34) Though the IACP had reservations, particularly in ensuring that each state would provide due process to officers if their licenses were revoked, it supported the bill because of its benefit to smaller jurisdictions. (35) Sheriffs from police departments across the county also wrote or testified in favor of the bill. Their reason for supporting the bill mirrored that of the IACP: the relative lack of funding that smaller police departments have to carry out background checks. (36) Further, James T. Moore, the Commissioner of the Florida Department of Law Enforcement, specifically discussed the weakness of background checks in discovering officer misconduct committed in the employ of out-of-state police departments. (37) Unfortunately, this support was insufficient.

Once again, the highly volatile nature of police-community relations has placed this issue in the public spotlight. Two potential solutions have been proffered that would ameliorate this issue. The database legislation discussed above is one such solution. (38) The other posits to persuade states to enact a model decertification law. Much has been written on what that legislation would look like. (39) This Note proposes a different solution--one which is a combination of previous ideas, but which would take further steps to strengthen accountability. Rather than allowing the states to enact minimum standards for officers, Congress should enact legislation that requires the Department of Justice to promulgate minimum standards for police officers. The Department of Justice should have the power to persuade, but not coerce, states to enact these minimum standards. The federal government, through the Department of Justice, should also create a database, similar to the one discussed above, that would store the employment data, reported by the states, of officers who have had their certification revoked or suspended. This type of legislation would be constructed similarly to the Clean Air Act: state agencies would be responsible for enacting and enforcing these standards on state and local police departments. The Department of Justice would only be involved when a state or local police department declines to enact or properly enforce the standards.

This Note...