POST Commissions and Police Accountability

Draft—Please do not circulate or cite without permission of the authors

State Regulation of Policing:

By Hilary Rau,* Kim Shayo Buchanan,** Monique L. Dixon,*** and Phillip Atiba Goff****

ABSTRACT Peace Officer Standards and Training (POST) commissions have broad authority to

regulate police officers and police departments. POST commissions, which are created by state laws and exist in all fifty states, act as professional licensing agencies for police officers within

the state. They determine eligibility and qualifications for police employment. They regulate the content and type of training officers receive. Most POST commissions can revoke certification of officers who commit serious misconduct or fail to meet continuing eligibility requirements set by

the commission. In some states, they also create mandatory policy standards that all departments

must meet or exceed.

This paper examines the untapped potential of POST commissions to protect

communities that have historically been subjected to police misconduct and discrimination,

including Black communities. POST powers have yet to be utilized fully for this purpose

because: 1) POST commissions lack clear legislative or organizational mandate to protect the

* Policy Director, Data Driven Interventions, Center for Policing Equity.

** Senior Policy Scholar, Center for Policing Equity.

*** Director of State Advocacy and Senior Counsel, NAACP Legal Defense and Educational Fund, Inc.

**** Professor of African-American Studies and Psychology, Yale University; Co-founder and CEO, Center for Policing Equity.

2 public from unethical or unjust policing, and 2) their membership tends to be dominated by law enforcement officials with little or no input from communities most burdened by harsh policing.

Thus, in practice, POST commissions’ regulatory and enforcement activities have generally failed to protect the public from harmful police behaviors. If legislatures address these structural problems, POST have the potential to regulate policing in the public interest and protect communities.

TABLE OF CONTENTS

Abstract ...... 1

Introduction ...... 3

Part I: Public Interest Mandate...... 11

Part II: Community Representation on POST Commissions ...... 15

Part III: Regulating Police To Protect Communities ...... 22

A. Discipline and Decertify Dangerous Officers ...... 22

B. Screening Out Unfit Police Recruits ...... 27

1. Background checks ...... 28

2. Psychological Screenings ...... 34

C. Reshaping Police Standards and Culture ...... 37

1. Police Training and Continuing Education ...... 38

2. Model Policies and Minimum Policy “Floors” ...... 42

Conclusion ...... 45

INTRODUCTION

On May 25, 2020, Minneapolis police officer Derek Chauvin killed George Floyd, an unarmed Black man, by pressing his knee into Floyd’s neck for eight minutes and forty-six seconds. Three other Minneapolis police officers, two of them rookies, assisted Chauvin by either holding Floyd down or preventing onlookers from intervening.1 The killing, which has prompted outrage and protests across the United States, illustrates profound, systemic failures in current public safety regulation. Why was Chauvin, who had eighteen prior complaints and two prior officer involved shootings, still patrolling the streets of Minneapolis and training new officers?2 How could two rookie officers have emerged from the police academy without grasping their duty to intervene3 and protect Mr. Floyd?4 Why did the Minneapolis Police

1 What We Know About the Death of George Floyd, , N.Y. TIMES (Sept. 12, 2020) available at https://www.nytimes.com/article/george-floyd.html; Kim Barker, The Black Officer Who Detained George Floyd Had Pledged To Fix The Police, N.Y. TIMES (Jun. 27, 2020), available at https://www.nytimes.com/2020/06/27/us/minneapolis-police-officer-kueng.html; Chao Xiong, Former Officer Who Held Back Crowd at George Floyd Death Should Face Trial, Prosecutors Argue, MINN. STAR TRIB. (Aug. 24, 2020), available at https://www.startribune.com/former-officer-who-held-back-crowd-at-george-floyd-death- should-face-trial-prosecutors-argue/572210692/

2 Kim Barker, The Black Officer Who Detained George Floyd Had Pledged To Fix The Police, N.Y. TIMES (Jun. 27, 2020), available at https://www.nytimes.com/2020/06/27/us/minneapolis-police-officer-kueng.html

3 Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009) (“As of July 2006, it was clearly established that a state actor may be liable for an unreasonable seizure under the Fourth Amendment if he fails to intervene to prevent the unconstitutional use of excessive force by another official.”); see also Bell v. Kansas City Police Dep't, 635 F.3d 346, 347 (8th Cir. 2011).

4 Id.

Department allow the use of chokeholds5 when many other departments had banned them decades before?6

In the aftermath of Mr. Floyd’s death and the police killing of Breonna Taylor, a Black women, as she slept in her home in Louisville,7 a broad, diverse coalition of over 400 organizations has advocated for a comprehensive law to promote greater police accountability and regulation.8 The U.S. House of Representatives debated and passed a bill – the George Floyd

Justice in Policing Act of 2020 - that adopted, in part, the demands made by the coalition. The bill would end qualified immunity for law enforcement officers accused of misconduct, ban chokeholds, and incentivize departments to adopt stricter use of force policies.9 If passed, this federal bill would be a step in the right direction toward police accountability. Most public

5 Jennifer Mayerle, Minneapolis Agrees To Ban Chokeholds and Require Officers to Intervene Against Unauthorized Use of Force, CBS MINNESOTA (Jun. 5 2020), available at https://minnesota.cbslocal.com/2020/06/05/after-george-floyds-death-minneapolis-bans-chokeholds-by-police/.

6 Larry Altman, Chokeholds Have Been Banned In Los Angeles for Decades, DAILY BREEZE (Dec. 4, 2014), available at https://www.dailybreeze.com/2014/12/04/chokeholds-have-been-banned-in-los-angeles-for- decades/; Nolan Hicks, City Council Approves Chokehold Ban, Other NYPD Reforms Amid Budget Fight (Jun. 18, 2020), available at https://nypost.com/2020/06/18/city-council-approves-chokehold-ban-and-nypd-reforms/; Mario Orellana, Union Says HPD Has Not Used Chokehold In Decades After Mayor Turner Issues Ban, KPRC 2 HOUSTON (Jun. 9, 2020), https://www.click2houston.com/news/local/2020/06/10/union-says-hpd-has-not-used-chokehold-in- decades-after-mayor-turner-issues-ban/

7 Brakkton Booker, Breonna Taylor's Mother Urges Criminal Charges: 'Every Day Is Still March The 13th, NPR, Aug. 13, 2020, https://www.npr.org/sections/live-updates-protests-for-racial- justice/2020/08/13/902104185/breonna-taylors-mother-awaits-criminal-charges-every-day-is-still-march-the-13th., Since 2015, Black residents disproportionately have been killed by police nationwide – 24% even though they represent only 13% of the general population. See Fatal Force, Wash. Post, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/.

8 Leadership Conference on Civil and Human Rights, Civil Rights Coalition Letter on Federal Policing Priorities (Jun. 1, 2020)

9 H.R. 7120, GEORGE FLOYD JUSTICE IN POLICING ACT OF 2020, https://www.congress.gov/bill/116th- congress/house-bill/7120. As of August 2020, the U.S. Senate has not considered an identical bill – Justice in Policing Act, S. 3912, https://www.congress.gov/bill/116th-congress/senate-bill/3912.

safety policymaking, however, occurs at the state or local level. Systemic reform of public safety

must, therefore, include statewide systemic reform.

Peace Officer Standards and Training (POST) commissions are, along with state

legislatures, the primary state regulators of police. POST commissions exist in all fifty states10

and in the District of Columbia. They act as professional licensing agencies for police officers

within the state, determine eligibility and qualifications for police employment,11 and develop

and coordinate police training programs, including the police academies attended by all newly

hired officers.12 Most POST commissions can revoke certification of officers who commit

serious misconduct or fail to meet continuing eligibility requirements set by the commission.13 In

some states, they also create mandatory policy standards that all departments must meet or

exceed.14

POST commissions have unique power to protect communities, particularly non-White

communities, from unethical, discriminatory, or abusive policing. Within each state, POST

commissions regulate almost every police officer15 and agency, from small-town sheriffs to major

10 Hawaii was the last state to create a POST commission in 2018. Hawaii’s Police Standards Board has not yet finalized its training and certification standards as required by statute. See Gina Mangieri, Hawaii Law Enforcement Standards Board Behind As Nation Turns Focus On Policing, KHON 2 (Jun. 2, 2020), https://www.khon2.com/news/always-investigating/hawaii-law-enforcement-standards-board-behind-as-nation- turns-focus-on-policing/

11 See infra Part III.B. 12 See, infra Part III.C.1. 13 See, infra Part III.A 14 See, infra Part III.C.2.

15 Some POST commissions also regulate who can work as a correctional officer, reserve officer, or private security officer. See Matthew J. Hickman, Post Agency Certification Practices. Report to the International Association of Directors of Law Enforcement Standards and Training (Apr. 5, 2016).

6 metropolitan agencies with thousands of officers serving millions of people.16 As a result, POST commissions have power to impose changes that will affect thousands of officers statewide. POST commissions’ statewide authority has particular relevance to small police and sheriffs’ departments that rarely attract attention from the U.S. Department of Justice17 and may lack any form of local civilian oversight.18

POST commissions can regulate policing proactively. Most individuals and entities engaged in police accountability work must respond to police misconduct reactively, after significant civil rights abuses have already occurred. For example, the Civil Rights Division of the

United States Department of Justice (USDOJ) can only require policy reform when a police department has engaged in a pattern or practice of constitutional violations.19 Under the current presidential administration, the USDOJ has mostly retreated from pattern or practice litigation and from civil rights reform collaboration with law enforcement agencies.20 Because Supreme Court precedent sets an extraordinarily high bar for civil litigants who seek injunctive relief to prevent future acts of police misconduct,21 plaintiffs are typically limited to seeking compensatory

16 While regulation by POST commissions is the rule, there are rare exceptions. For example, California’s POST program is a voluntary, incentive-based program. While the vast majority of departments in California participate, there are a handful of smaller departments that are not POST-participating. Most non-participating agencies are affiliated with schools, universities, district attorney offices, and probation departments. See California POST Commission Website, https://post.ca.gov/le-agencies

17 U.S. Department of Justice, The Civil Rights Division’s Pattern and Practice Work: 1994 to the Present (2017) at 41-48, available at https://www.justice.gov/crt/file/922421/download.

18 National Association for Civilian Oversight of Law Enforcement, Police Oversight By Jurisdiction, https://www.nacole.org/police_oversight_by_jurisdiction_usa

19 42 U.S.C. § 14141.

20 Stephen Rushin, Police Reform Under The Trump Administration, 2017 U. ILL. L. REV. ONLINE: Trump 100 Days (Apr. 29, 2017)

21 In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the United States Supreme Court held that a plaintiff who had been subjected to a chokehold by LAPD officers lacked standing to seek an injunctive relief. Although the plaintiff introduced evidence that LAPD officers had killed sixteen people with chokeholds over a nine-year period

7 damages for harms that have already occurred.22 Local civilian oversight agencies rarely possess authority to compel changes in policy and training.23 POST commissions, by contrast, have significant power to require changes that can prevent misconduct and harm before they occur through training requirements and officer hiring criteria, and the decertification of officers with troubling records of misconduct.

This paper will examine the untapped potential of POST commissions to protect communities from police misconduct and discrimination. POST powers have yet to be utilized fully for this purpose because: 1) POST commissions lack any clear legislative or organizational mandate to protect the public from unethical or unjust policing, and 2) their membership tends to be dominated by law enforcement officials with little or no input from communities most burdened by harsh or combative policing. Thus, in practice, POST commissions’ substantive standards for officer hiring, decertification, training, and model policies have generally failed to protect the public from harmful police behaviors. By contrast, state governing bodies in other professions, such as nursing, medicine, and law, typically do have legislative mandates to protect the public24 and almost always include public representatives. 25 POST commissions can regulate

(including twelve African-Americans), the Court held that the plaintiff had failed to prove that he personally faced an immediate threat of being subjected to a chokehold in the future.

22 Joanna C. Schwartz, Who Can Police the Police? 2016 U. CHI. LEGAL. F. 437, 450-1 (2016) [hereinafter Schwartz, Who Can Police The Police?] (“The Supreme Court's standing doctrine makes it difficult for a plaintiff to bring claims for injunctive relief against law enforcement; accordingly, plaintiffs rely primarily on damages actions.”)

23 Joseph DeAngelis, Richard Rosenthal, and Brian Buchner, Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models, National Association for Civilian Oversight of Law Enforcement (2018), available at https://www.berkeleyside.com/wp- content/uploads/2018/03/NACOLE_short_doc_FINAL.pdf.

24 See Part I infra.

25 See Part II infra.

8 law enforcement more effectively if state legislatures take action to address these structural problems.

POST commissions have been largely overlooked in legal academic literature about police accountability. This literature has tended to focus on the protections afforded by the

Fourth and Fifth Amendments to the United States Constitution and by federal civil rights statutes.26 Yet, as many scholars have noted, constitutional litigation has not always worked to systematically protect people against discriminatory policing,27 excessive force, 28 or other forms

26 Rachel Harmon, The Problem of Policing, 110 MICH. L. REV. 761 (2012) [hereinafter Harmon, Problem of Policing] (“Since the Warren Court, academics have largely confined their analysis of the problem of policing in law to constitutional analysis of police conduct that falls within the plausible scope of the Fourth and Fifth Amendments.”); Seth W. Stoughton, The Incidental Regulation of Policing, 98 MINN. L. REV. 2179, 2182 (2014) [hereinafter Stoughton, Incidental Regulation of Policing]; Stephanos Bibas, The Real-World Shift in Criminal Procedure, 93 J. CRIM. L. & CRIMINOLOGY 789, 789-92 (2003) (“For four decades, criminal procedure scholars have focused on federal constitutional rulings by the Supreme Court.”); Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155, 160 (2009) (“[P]olice practices left mostly untouched by federal constitutional law lie beyond the focus of the legal academy as well.”). 27See, e.g. Megan Quattlebaum, Let’s Get Real: Behavioral Realism, Implicit Bias, and the Reasonable Police Officer, 14 STAN. J.C.R. & C.L. 1 (2018) (“Constitutional law is not particularly sophisticated about bias, and so it is not very good at protecting people from it.”); Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. REV. 1182 (2017) (arguing that “Fourth Amendment suspicion standards have been adopted, and lowered, with open acknowledgment of the burdens these standards will impose on persons of color."); I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 HARV. C.R.-C.L. L. Rev. 1, 34 (2011) (arguing that current Fourth Amendment case law “virtually gives officers carte blanche to engage in race-based pretextual stops.”); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 328 (1997); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 CAL. L. REV. 125, 130 (2017) (“African Americans often experience the Fourth Amendment as a system of surveillance, social control, and violence, not as a constitutional boundary that protects them from unreasonable searches and seizures.”); Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 GEO. L.J. 1419, 1452 (2016) (“Reasonableness is the touchstone of the Court's Fourth Amendment analysis. My modest suggestion is that the Court has a different point of view about the kind of policing that is reasonable for black people than is reasonable for white people.”)

28 See, e.g. Brandon Garrett and Seth Stoughton, A Tactical Fourth Amendment, 103 VIRGINIA L. REV 2011 (2017) (arguing that current Fourth Amendment jurisprudence “fails to provide clear guidance that can be applied by officers in the moment or by attorneys and judges in the aftermath of an officer-involved homicide or other use of force.”); Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. REV. 1182 (2017) (arguing that “Fourth Amendment suspicion standards have been adopted, and lowered, with open acknowledgment of the burdens these standards will impose on persons of color."); Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting) (“By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”); Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (arguing that the Supreme Court’s “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”)

9 of police misconduct.29 More recently, legal scholars have begun to explore a broader ecology of police regulation.30 They have analyzed and proposed reforms to the matrix of state, federal, and local laws and contracts that directly and indirectly regulate policing,31 examining a wide array of government and private actors whose decisions can shape police policy, culture and behavior.32 Scholars have also argued for internal culture change within departments and within

29 See, e.g. Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023 (2010) (questioning judicial assumptions that civil rights lawsuits will deter future police misconduct base on empirical evidence that police departments “rarely have much useful information about suits alleging officer misconduct.”); Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 NOTRE DAME L. REV. 585, 587 (2011) (arguing that the exclusionary rule does not effectively deter police officers from conducting searches that violate the Fourth Amendment); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797, 1800 (2018) (arguing that the doctrine of qualified immunity “hamper[s] the development of constitutional law and may send the message that officers can disregard the law without consequence.”) 30 Harmon, Problem of Policing, supra note 24 at ___. 31 See, e.g. Harmon, Problem of Policing, supra note 24 at ___; Samuel Walker and Morgan Macdonald, An Alternative Remedy for Police Misconduct: A Model State “Pattern or Practice” Statute, GEORGE MASON CIV. R. L. J. 19 (2009), Stoughton, Incidental Regulation of Policing, supra note 24 at __; Stephen Rushin, Police Union Contracts, 66 DUKE L.J. 1191 (2017) [hereinafter Rushin, Police Union Contracts]; Catherine Fisk & L. Song Richardson, Police Unions, 85 GEO. WASH. L. REV. 712 (2017); Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation, Preseizure Conduct, and Imperfect Self-Defense, 2018 U. ILL. L. REV. 629 (2018); Myriam Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1417-19 (2000), Maria Ponomarenko, Rethinking Police Rulemaking, 114 NW. U. L. REV. 1 (2019).

32 See, e.g. Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 MINN. L. REV. 1343 (2015) (U.S. D.O.J. Civil Rights Division); Stephen Rushin, Federal Enforcement of Police Reform, 82 FORDHAM L. REV. 3189, 3244-47 (2014) (same); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 STAN. L. REV. 1 (2009) (same); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 507 (2008) (U.S. D.O.J. Civil Rights Division); Walker and Macdonald supra note __ (state attorneys general and state legislatures); Schwartz, Who Can Police the Police, supra note 20 (comparing nine categories of individuals and entities with the potential to promote police accountability and reform); I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 IND. L.J. 835, ___ (2008) (local prosecutors); Harmon, Problem of Policing, supra note ___ at 796-9 (civil service commissions); Rushin, Police Union Contracts, supra note __ at ___ (police unions and civil service commissions); Catherine Fisk & L. Song Richardson, Police Unions, 85 GEO. WASH. L. REV. 712 (2017) (police unions); Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151 (2003) (civilian oversight bodies); Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1082 (2010) (public entity insurers); John Rappaport, An Insurance-Based Typology of Police Misconduct, 2016 U. CHI. LEGAL. F. 369 (2016) (public entity insurers); John Rappaport, How Private Insurance Regulates Public Police, 130 HARV. L. REV. (2017) (public entity insurers; Ingrid v. Eagly & Joanna C. Schwartz; Lexipol: The Privatization of Police Policymaking, 96 TEX. L. REV. 891 (2018) (private police policymaking companies); Karena Rahall, The Green to Blue Pipeline: Defense Contractors and the Police Industrial Complex, 36 CARDOZO L. REV. 1785 (2015) (defense contractors); and Jocelyn Simonson, Copwatching, 104 CAL. L. REV. 391 (2016) (citizen copwatching groups).

10 the field of policing more broadly to create sustainable police reform.33 But the scholarly literature on police accountability has largely overlooked POST commissions.34 Although a few scholars have argued for expansion or increased utilization of POST power to regulate pre- employment background checks35 and decertify officers who commit misconduct,36 the existing legal scholarship has not systematically addressed the authority of POST commissions to protect the public against harm by police officers. As Rachel Harmon has observed, “little has been written about how [POST commissions] should be organized to avoid undue influence by the police officers and departments they regulate, what their powers can usefully be, or how their regulations interact with other means of promoting lawful and harm-efficient policing.”37

This article aims to fill this gap by offering a proposal for how POST commissions could be structured and utilized to protect the public from the harms of violent, discriminatory, or unethical policing. In Part I, we contend that the legislative and institutional mandate of each

POST commission must state that a primary goal of their regulatory and enforcement powers is

33 See, e.g. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. (2004); Seth W. Stoughton, Principled Policing: Warrior Cops and Guardian Officers, 51 WAKE FOREST L. REV. 611 (2016); Samuel Walker, “Not Dead Yet: The National Police Crisis, A New Conversation About Policing, and The Prospects for Accountability-Related Police Reform, U. ILL. L. REV 1777, 1792-9 (2018) (arguing that policy reports by industry group Police Executive Research Forum have helped to create a roadmap for future police reform).

34 Even articles that aim to provide an overview of policing reform strategies have not addressed POST commissions as vehicles for reform. See, e.g. Schwartz, Who Can Police the Police?, supra note 20 (comparing nine categories of individuals and entities with the potential to promote police accountability and reform); Samuel Walker, “Not Dead Yet: The National Police Crisis, A New Conversation About Policing, and The Prospects for Accountability-Related Police Reform, U. ILL. L. REV 1777 (2018) (discussing a broad series of police reform efforts at the national, state, and local levels after the events in Ferguson in 2014).

35 Ben Grunwald & John Rappaport, The Wandering Officer, 129 YALE L. J. 1676-1782 (2020).

36 Roger L. Goldman, and Steven Puro, Decertification of Police: An Alternative to Traditional Remedies for Police Misconduct, 15 HASTINGS CONST. L. Q. 45 (1987); Roger L. Goldman, and Steven Puro, Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct?, 45 ST. LOUIS UNIVERSITY L.J. 541 (2001); Roger L. Goldman, State Revocation of Law Enforcement Officers’ Licenses and Federal Criminal Prosecution: An Opportunity for Cooperative Federalism, 22 St. LOUIS U. PUB. L. REV. 121 (2003); Roger L. Goldman, A Model Decertification Law, 32 St. LOUIS U. PUB. L. REV. 147 (2012). 37 Harmon, Problem of Policing, supra note 24 at ___.

to protect people against the harms of discriminatory policing and officer misconduct. Currently,

many POST commissions lack any legislative direction with respect to the purpose of their

regulatory and enforcement powers. Mission statements adopted by POST commissions typically

emphasize police efficacy and performance and rarely mention ethics or protecting the public

against harm by police officers. Part II of this article argues that POST commissions should

include substantial representation of the public, especially representatives of Black communities.

Part III recommends substantive rules that POST commissions could adopt to regulate police in the public interest.

PART I: PUBLIC INTEREST MANDATE

Effective reform of POST commissions must begin with state policymakers reimagining

the mission and purpose of these entities. Protecting people from the harms of unethical policing

should be a central goal of POST commissions. The statewide governing bodies of many other

regulated professions hold protection of the public protection as their primary institutional goal.

California’s Medical Practice Act, for example, states: “Protection of the public shall be the

highest priority for the Medical Board of California in exercising its licensing, regulatory, and

disciplinary functions. Whenever the protection of the public is inconsistent with other interests

sought to be promoted, the protection of the public shall be paramount.”38 Near-identical language is included in authorizing statutes of California’s governing bodies for the professions

38 CAL. BUS & PROF. CODE § 2001.1

12 of nursing,39 psychology,40 law, 41 cosmetology, 42 and general contractors.43 Yet the authorizing statute for California’s POST commission is silent about protecting the public against harm by members of the profession.44 Instead, it states only that the commission’s power to set minimum selection standards for officers should be exercised “[f]or the purpose of raising the level of competence of local law enforcement officers.”45

State legislatures have given POST commissions little or no direction as to the goals that should animate their work. Currently, twenty-seven states provide no legislative statement of the mission or purpose of their POST commissions.46 Where any purpose is identified, most statutes emphasize that police training should be “of a professional quality” in order to protect “public

39 CAL. BUS & PROF. CODE § 2708.1 (“Protection of the public shall be the highest priority for the Board of Registered Nursing in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”)

40 CAL. BUS & PROF. CODE § 4990.16 (“Protection of the public shall be the highest priority for the board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”)/

41 CAL. BUS & PROF. CODE § 6001.1 (“Protection of the public…shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”)

42 CAL. BUS & PROF. CODE § 7303.1 (“Protection of the public shall be the highest priority for the Board of Barbering and Cosmetology in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”)

43CAL. BUS & PROF. CODE § 7000.6 (“Protection of the public shall be the highest priority for the Contractors' State License Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”)

44 CAL. PENAL CODE §§ 13500, et seq.

45 CAL. PENAL CODE § 13510(a).

46 See, e.g. AK ST § 18.65.130; 50 ILCS 705/1; LSA-R.S. 40:2401; MISS. CODE ANN. § 45-6-1; N.J.S.A. 52:17B-66; N.H. REV. STAT. § 188-F:22; N.C.G.S.A. § 17C-1; RCW § 43.101.010; RHODE ISLAND GEN. LAWS § 42-28.2-1.

13 safety” and the administration of criminal justice.47 Public protection against the risk of harm by police officers is not directly mentioned.

In the absence of legislative mandate, many POST commissions have adopted their own mission statements. Most POST mission statements focus on promoting police competence, excellence, effective performance, or “professionalism.”48 The mission statement of the

California POST commission, for example, is “to continually enhance the professionalism of

California law enforcement in serving its communities.”49 Only nine state POST commissions have mission statements that mention promotion of officer ethics, integrity, or compliance with

47 See, e.g. AK ST § 18.65.130; LA Rev. Stat. §§ 40:2401; Miss. Code Ann. §§ 45-6-1 et seq; N.J.S.A. §§ 52:17B-66; N.H. Rev. Stat. § 188-F:22; N.C.G.S.A. § 17C-3(a); Rhode Island Gen.Laws §§ 42-28.2-1; SDCL §§ 23-3-26 et seq 48 See, e.g. Montana Public Safety Officers Training Council website, https://dojmt.gov/post/, (“To ensure competency & promote quality performance by public safety officers by establishing, maintaining & promoting excellence in standards and training.") Vermont CJSTC website, https://vcjtc.vermont.gov ("The mission of the Vermont Criminal Justice Training Council is to improve public safety by promoting excellence in law enforcement through the implementation of the highest standards for training, certification, and recognized best practices."); Mission, California Commission on Peace Officer Standards and Training website, https://post.ca.gov/mission- values-vision.; What is KLEC?, Kentucky Law Enforcement Council website, https://klecs.ky.gov/what-is-klec (“Assist law enforcement agencies in hiring the best qualified applicants available at the least cost with the least inconvenience in a timely manner understanding throughout that agency pre-employment needs vary greatly by the size of the agency.”)

49 Mission, California Commission on Peace Officer Standards and Training website, https://post.ca.gov/mission-values-vision.

14 law.50 Only two POST mission statements include equity as one of their objectives.51 Only one

POST body, the Utah Peace Officer Standards and Training Division, mentions the protection of citizens’ rights as a central aspect of its mission. 52

50 See Arizona Peace Officer Standards and Training Board Website, https://post.az.gov/ (“to foster public trust and confidence by establishing and maintaining standards of integrity, competence, and professionalism for Arizona peace officers and correctional officers” Florida Criminal Justice Standards and Training Commission website, https://www.fdle.state.fl.us/CJSTC/Commission/CJSTC-Home.aspx (“To ensure that all citizens of Florida are served by criminal justice officers who are ethical, qualified, and well-trained.”), Georgia Peace Officer Standards and Training Council Website, https://www.gapost.org/, ( “to provide the citizens of Georgia with qualified, professionally trained, ethical and competent peace officers and criminal justice professionals”), About KSCPOST-- Mission, Kansas Commission on Peace Officer Standards and Training Website, https://www.kscpost.org/kscpost.html ( “to provid[e] the citizens of Kansas with qualified, trained, ethical, competent, and professional peace officers…[and] to adop[t] and enforc[e] professional standards for certification of peace officers to promote public safety and preserve public trust and confidence.”), Mississippi Board on Law Enforcement Standards and Trainig website, https://www.dps.ms.gov/public-safety-planning/standards-and- training/BLEOST (“to insure [sic] that law enforcement candidates are selected according to high standards of education, fitness and morals” , Nevada Commission on Peace Officer Standards and Training website, http://post.nv.gov/About-Us/ (“to develop deliver professional training ensuring that all Nevada peace officers and their agencies comply with established statutes and regulations.”), North Carolina Criminal Justice Education and Training Standards Commission wesite, https://ncdoj.gov/law-enforcement-training/criminal-justice/ ( “to assure that all of the State’s criminal justice officers are both competent and ethical in the conduct of their duties); Oregon: Criminal Justice and Safety, Website of Oregon Department of Public Safety Standards and Training Commission, https://www.oregon.gov/dpsst/cj/pages/default.aspx (“There are two critical components of the DPSST Mission that work together to promote excellence in Oregon's public safety professions -- delivering quality training and upholding professional standards…Upholding professional standards ensures the integrity of Oregon's criminal justice system by ensuring that officers meet and maintain all established training, physical, emotional, intellectual and moral fitness standards for all public safety disciplines.”) Texas Commission on Law Enforcement website, https://www.tcole.texas.gov/content/tcole-mission (“to establish and enforce standards to ensure that the people of Texas are served by highly trained and ethical law enforcement, corrections, and telecommunications personnel.”) and Utah. Utah Department of Public Safety website, Peace Officers Standards and Training Division—About POST, https://post.utah.gov/about-post-2/ (mission includes “elevating the integrity of the profession.")

51 INDIANA CODE §. 5-2-1-1 ("In order to ensure the public safety and general welfare of the people of the state of Indiana and to promote equity for all segments of society, a program of mandatory training for law enforcement officers is established."); S.C. CODE § 23-23-10(a) ("In order to ensure the public safety and general welfare of the people of this State, and to promote equity for all segments of society, a program of training for law enforcement officers and other persons employed in the criminal justice system in this State is hereby proclaimed and this chapter must be interpreted to achieve these purposes principally through the establishment of minimum and advance standards in law enforcement selection and training.").

52 Utah Department of Public Safety website, Peace Officers Standards and Training Division—About POST, https://post.utah.gov/about-post-2/ (stating that mission is to “provide professional standards and training, leadership and certification for peace officers and dispatchers as we work to protect the rights and privileges of Utah’s citizens while elevating the integrity of the profession."). In addition, Oregon’s Board of Public Safety Standards and Training has adopted regulatory language stating that its moral fitness standards are “critical to upholding the public’s trust in the public safety profession” and “protecting the public. See Oregon Rule 259-008- 0300.

Promotion of competent policing is a laudable goal, and competent policing will tend to

protect the public interest. POST commissions should and do set selection and training standards

to ensure that police officers are qualified, competent, and effective. It is equally important,

though, that police officers behave in ethical and equitable ways, and do not harm people in the

course of their work. Currently, most POST commissions focus on the first goal, but neglect the

second.

The statutes that create POST commissions, like those that create other professional

regulatory bodies, must establish public protection as a central mandate. Protecting the public

encompasses not only the effective suppression of crime, but also protecting people—including

victims, witnesses, lawbreakers, observers, bystanders, and the general public—against harm by

police officers. POST commissions should be mandated to protect people against the physical,

dignitary, and constitutional harms that can result from discriminatory, unethical, or abusive

policing. POST commissions should also have an explicit obligation to prevent discrimination

and promote equity in public safety systems and practices.53

PART II: COMMUNITY REPRESENTATION ON POST COMMISSIONS

The effective reform of POST commissions will require not only a shift in legislative mandate, but also changes in membership. POST commissions might view their responsibilities differently if residents of heavily policed communities, victims of police misconduct, criminal

53 See, e.g. INDIANA CODE sec. 5-2-1-1 ("In order to ensure the public safety and general welfare of the people of the state of Indiana and to promote equity for all segments of society, a program of mandatory training for law enforcement officers is established."); S.C. CODE § 23-23-10(a) ("In order to ensure the public safety and general welfare of the people of this State, and to promote equity for all segments of society, a program of training for law enforcement officers and other persons employed in the criminal justice system in this State is hereby proclaimed and this chapter must be interpreted to achieve these purposes principally through the establishment of minimum and advance standards in law enforcement selection and training.").

defense attorneys, civil rights advocates, and social scientists had greater voice and

representation on POST commissions.

When Clarence Castile attended his first meeting as a newly appointed member of the

Minnesota Peace Officers Standards and Training Board in 2017, his first order of business was asking the board to rename a new twelve million-dollar police training fund after his nephew

Philando Castile, who had been shot and killed at a traffic stop by Minnesota police officer

Jeronimo Yanez the prior year. “We don’t want to make any more Philando Castiles, and we

don’t want any more officers in the shape or form of Jeronimo Yanez,” Castile argued.54 Despite

the governor’s support for the proposed renaming, the POST board ultimately voted to retain the

fund’s original name—the Peace Officer Training Assistance Fund—by a vote of eight to two.55

The two public members of the POST Board were outvoted by the other eight members,56 all of

whom were current or retired police officers or law enforcement instructors.57

In order to protect people against police discrimination and misconduct, POST

commissions need to include substantial representation of the communities that bear the greatest

54 Minnesota Board of Peace Officer Standards and Training, Board Meeting Minutes (Jul. 27, 2017), https://dps.mn.gov/entity/post/about/meetingminutesdocumentlibrary/July%2027%202017%20Board%20Minutes.p df

55 Erin Golden, Police standards board votes against naming training fund for Philando Castile, STAR TRIBUNE (Jul. 27, 2017), available at http://www.startribune.com/police-standards-board-votes-against-naming- training-fund-for-philando-castile/436985783/ 56 Minnesota Board of Peace Officer Standards and Training, Board Meeting Minutes (Jul. 27, 2017), https://dps.mn.gov/entity/post/about/meetingminutesdocumentlibrary/July%2027%202017%20Board%20Minutes.p df 57 Id.; Minnesota Board of Peace Officer Standards and Training (POST) Website, Members, https://dps.mn.gov/entity/post/about/Pages/board.aspx; ALEXANDRIA TECHNICAL & COMMUNITY COLLEGE, Law Enforcement Instructors, https://www.alextech.edu/programs/law-enforcement-aas/instructors; CHISAGO COUNTY PRESS, Lakes Area Police Department transitioning into new era, (Dec. 1, 2016), https://chisagocountypress.com/main.asp?SubSectionID=1&ArticleID=22589&SectionID=1.

17 burden of harms from policing, such as Black, Indigenous, Latinx,58 and LGBTQ+ people,59 people with disabilities,60 and people who have experienced homelessness.61 Currently, however,

POST commissions are typically comprised almost entirely by law enforcement officials and local government leaders, with limited (if any) representation of other stakeholders.62 The current makeup of POST commissions is a product of legislative design: the public has no direct voice in the appointment or selection of most POST commissioners, and few seats are reserved for community representatives.

Most POST commission members are appointed by the state governor or another elected official.63 Most enabling statutes require the governor to appoint POST commissioners to represent specified officials from city government or the law enforcement side of the criminal justice system, such as police chiefs, patrol officers, prosecutors, and city managers.64 These statutory requirements may prevent governors from appointing POST commissioners who will

58 Ryan Gabrielson, Eric Sagara and Ryann Grochowski Jones, Deadly force, in Black and White: A ProPublica analysis of killings by police shows outsize risk for young Black males, ProPublica (2014); https://www.propublica.org/article/deadly-force-in-black-and-white; The Counted: People killed by police in the US., THE GUARDIAN (2016), http://www.theguardian.com/us-news/series/counted-us-police-killings; STANFORD OPEN POLICING PROJECT, Findings, https://openpolicing.stanford.edu/findings/

59 Lambda Legal, Protected and Served? available at https://www.lambdalegal.org/protected-and-served; Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf at 186.

60 Ayobami Laniyonu and Phillip Atiba Goff, Policing the most vulnerable: Measuring disparities in police use of force and injury among persons with serious mental illness. Manuscript under review.

61 Leila Miller, Use of Force Incidents Against Homeless People Are Up, LAPD reports, L.A. TIMES (Jan 21, 2020) (reporting that during the third quarter of 2019, one third of LAPD use of force incidents involved people who were homeless); Housing Not Handcuffs, National Law Center on Homelessness and Poverty (2019).

62 See infra ___

63 48 states have members appointed by governors and 2—North Dakota and South Dakota--have members appointed by the state attorney general.

64 See, e.g. CA. PENAL CODE § 13500; 50 I.L.C.S. §§ 705/3; GA. CODE ANN. § 35-8-3; KRS § 15.315; N.H. Rev. Stat. § 106-L:3

reflect and represent the interests of heavily policed communities, even if they want to. The

public has no direct voice in who will occupy these seats.

Thirty-eight states and the District of Columbia also reserve ex officio seats on the POST commission for specific state, local, or federal government and public safety officials, such as mayors, state attorneys general, and directors of local FBI field offices.65 Seventeen states also

reserve seats for officials or designees of bodies such as police unions, police professional

organizations, and local government interest groups.66 New Jersey, for example, allots 10 of the

19 seats on its POST commission to leaders of law enforcement and correctional professional

organizations.67 North Carolina reserves 13 of the 34 seats on its POST commission for the

designees of various law enforcement professional organizations.68 By contrast, only one state

reserves a seat for a member of the defense bar.69 No states grant ex officio POST commission

membership to leaders or appointees of civil rights, racial justice groups, or any other organizations that advocate for the communities that have historically been subjected to discriminatory policing.70

Half of U.S. states reserve no seats on the state POST commission for any non-police

members of the general public. Even seats on POST commissions that are ostensibly reserved for members of the public are often filled by people with strong ties to law enforcement. In

65 See, e.g. Ca. Penal Code § 13500; 50 I.L.C.S. §§ 705/3; Ga. Code Ann. § 35-8-3; F.S.A. § 943.11.

66 Alabama, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Oklahoma, Oregon, Vermont, Virginia.

67 N.J.S.A. § 52:17B-70.

68 N.C.G.S.A. § 17C-3.

69 VA Code Ann. § 9.1-108.

70 N.J.S.A. § 52:17B-70 (reserving a seat for the President of the National Organization of Black Law Enforcement Executives).

Vermont, where the governor is required to appoint to the Vermont Criminal Justice Training

Council members who “provide broad representation of all aspects of law enforcement and the public,”71 the sole “public” representative is the chair of a local police commission and head of a local emergency management department.72 As a result, the Vermont CJTC is made up entirely of police and government representatives.73 Although Alaska reserves four seats of thirteen on its

Police Standards Council for members of the “public at large,” two of these “public” seats are currently occupied by former police officers with over 20 years of law enforcement experience.74

In Utah, two of the three current “at large” members have close professional ties to law enforcement. One of the “at large” members is a current employee of the Sandy Police

Department and the secretary of the Utah Fraternal Order of Police;75 another is a federal prosecutor and the trustee of a foundation dedicated to helping the families of fallen officers.76

Police officers occupy “public” seats on POST commissions because most states that reserve

POST commission seats for “public” members either fail to define the term,77 or state simply that

71 20 V.S.A. § 2352.

72 State of Vermont Criminal Justice Training Council—Members, State of Vermont Official Website, https://vcjtc.vermont.gov/council/members; Official Webpage of Bradford, Vermont, https://www.bradford- vt.us/public-safety/

73 Id.

74 Public member Wendi Shakelford is a former school resource officer with 20 years in law enforcement. See Alaska Police Standards Council Members, Website of Alaska Department of Public Safety, https://dps.alaska.gov/APSC/Members; Wendi Shakelford, Website of Alaska Firefighters Peer Support, https://akffps.org/team_member/wendi-shackelford/. Public member Daniel Weatherly a retired Alaska State Trooper with over 22 years of law enforcement experience. See Minutes of State Affairs Standing Commmitee, Alaska State Senate (Feb. 20, 2020), available at http://www.akleg.gov/basis/Meeting/Detail?Meeting=SSTA%202020-02-20%2015:30:00

75 POST Council Members, Utah POST Council Website, https://post.utah.gov/post-council/post-council- members/; LinkedIn, Profile of Christie Moren, https://www.linkedin.com/in/christie-moren-020371b/

76 POST Council Members, Utah POST Council Website, https://post.utah.gov/post-council/post-council- members/; Utah 1033 Foundation Website, Utah 1033 Foundation Trustees, https://utah1033.org/about-us/trustees/. 77 See e.g. RCWA § 43.101.030; Ohio R.C. § 109.71.

public members must not be law enforcement officers, 78 leaving open the possibility that they

could be occupied by former law enforcement or other people with strong financial, professional,

or family ties to law enforcement. Only six states expressly require that public members have

never been law enforcement officers and have no business or professional connections to law

enforcement.79 Only two states reserve any seat for any group that could plausibly represent the

interests of heavily policed communities, such as members of the defense bar, public health

experts, community advocates, or members of civil rights, disability rights, or racial justice

organizations.80

While police leadership, retired police officers, and police unions bring subject-matter

expertise to the project of professional regulation, they have no particular expertise in civil rights

law, racial or social justice, or public health. Nor can police officers adequately represent the

experiences, interests, or needs of the communities that experience the greatest burden from law

enforcement.

By contrast, regulatory bodies that oversee other professions such as law, medicine and

nursing typically mandate substantial public representation. Public representatives are required

for medical boards in 49 states and for boards of nursing in 50 states.81 An average of 25% of medical board seats are reserved for non-physician members.82 The American Bar Association’s

78 M.S.A. § 626.841.

79 New Mexico (N.M.S.A. 1978 § 29-7-3), Maryland (M.C.L.A. § 28.603), Missouri (V.A.M.S. § 590.120), Oregon (O.R.S. § 181A.360), Tennessee (T.C.A. § 38-8-102), Texas (V.T.C.A., Occupations Code § 1701.051). New Hampshire prohibits family connections, but not financial connections. N.H. Rev. Stat. § 106-L:3. 80 Virginia reserves a seat for the Executive Director of the Virginia Indigent Defense Commission, Maryland reserves a seat for someone expertise in mental health. VA Code Ann. § 9.1-108.

81 National Council of State Boards of Nursing, 2019 Board Structure Survey (2109), availabe at https://www.ncsbn.org/2019BoardStructure.pdf; Board Composition, Federation of State Medical Boards (May 2, 2019), available at https://www.fsmb.org/siteassets/advocacy/key-issues/state-medical-board-composition.pdf

82 Id.

model rules for lawyer disciplinary enforcement suggest that public members comprise at least

one third of each attorney disciplinary board.83

Public representation is even more crucial for policing than for other regulated

professions because members of the public have so few remedies when they are harmed by

police.84 When people are harmed by doctors, nurses or lawyers, they can sue, or at least seek

care or legal services from a different practitioner. Residents have no control, however, over

which officers patrol their neighborhood. They have no right to refuse when a police officer

decides to stop and frisk them, even if a particular officer has harassed or abused them in the

past. Moreover, it is extremely difficult to sue police officers for inappropriate surveillance or

excessive use of force.85 The imbalance of power between citizens and police is even greater

than, say, between patients and physicians, or clients and lawyers. Members of the public—

especially those from heavily policed communities—have an exceptionally strong need for a

voice in police regulation.

State legislatures should ensure that POST commissions at least match, and preferably

exceed, the public representation mandated on state boards of physicians, nurses, or state Bar

associations. Definitions of “public members” should exclude anyone who has worked as a

sworn or non-sworn employee of a police department. State legislatures could reserve POST

commission seats for members who represent the interests of groups that experience

83 American Bar Association, Model Rules for Lawyer Disciplinary Enforcement (June 16, 2020), available at https://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_f or_lawyer_disciplinary_enforcement/rule_2/

84 Schwartz, Who Can Police?, supra note 20 at 450-454 (citing barriers to police accountability litigation such as qualified immunity); see also City of Los Angeles v. Lyons, 461 U.S. 9 (1983).

85 Id.

disproportionate harm from policing, such as Black people, Indigenous people, Latinx people,

and people with serious mental illness. POST commissions should also reserve seats for

members of the defense bar and people with expertise in civil and human rights, racial justice,

and public health.

PART III: REGULATING POLICE TO PROTECT COMMUNITIES

POST commissions have significant power to protect the public from unfit police officers and dangerous police practices. First, POST commissions can protect the public by decertifying police officers who have engaged in acts of violence or misconduct. Second, POST commissions can screen out unsuitable police recruits before they ever patrol communities. Third, POST commissions can reshape police professional standards through use of their powers to regulate training and set minimum organizational policy “floors.” This section proposes substantive rules that POST commissions could adopt in each of these areas to better protect the public from harm.

This section also explores ways that state legislatures might support POST commissions in their regulatory and enforcement work.

A. Discipline and Decertify Dangerous Officers In too many cases, officers who have committed serious or repeated acts of violence or misconduct remain employed by police departments.86 Detroit police officer Gary Allen Steele

fired a gun near his girlfriend’s head during an argument. After being charged with attempted

86 Timothy Williams, Cast-Out Police Officers Are Often Hired in Other Cities, N.Y. TIMES (SEPT. 11, 2016); Courtney Teague, Senate Waters Down Bill To Set Minimum Police Officer Standards, HONOLULU CIVIL BEAT (Apr. 4, 2018); Roger L. Goldman, Rogue cops should not be recycled from one police department to the next, THE GUARDIAN (May 20, 2015);Anthony Fisher, Why It's So Hard to Stop Bad Cops From Getting New Police Jobs, REASON (Sept. 30, 2015); Christopher N. Osher, Felony guilty plea did not end Colorado cop’s career; havoc followed, THE DENVER POST (Dec. 12, 2015); Robert Faturechi and Ben Poston, Sheriff's Department hired officers with histories of misconduct LA TIMES (Dec. 1, 2013); Kimbriell Kelly , Wesley Lowery and Steven Rich, Forced out over sex, drugs and other infractions, fired officers find work in other departments, WASH. POST (Dec. 28, 2017).

23 murder, he pled guilty to misdemeanor assault and was permitted to stay on the force.87 Officer

Eddie Boyd resigned from the St. Louis Police Department after striking two different children in the face with weapons without justification, only to be rehired by two other Missouri police departments.88 Ethan Ferguson was fired from the Honolulu Police Department after falsifying reports and lying to his supervisors about transporting a minor girl, but went on to be hired at a new job as a state conservation officer, where he sexually assaulted a different teenage girl.89

POST commissions’ decertification power could serve as a powerful tool for protecting communities from egregious repeat police offenders. Forty-six states empower POST commissions to revoke an officer’s certification, preventing the officer from working as a police officer anywhere within the state.90 All forty-six POST agencies that have decertification authority can revoke an officer’s certification if the officer is convicted of a felony, and forty-five states can revoke certification based on certain misdemeanor convictions.91 Most states also empower POST commissions to decertify officers who commit serious misconduct on the job.92

87 Id.

88 Timothy Williams, Cast-Out Police Officers Are Often Hired in Other Cities, N.Y. TIMES (Sept. 10, 2016), available at https://www.nytimes.com/2016/09/11/us/whereabouts-of-cast-out-police-officers-other-cities-often- hire-them.html.

89 Michael Martinez and Keith Allen, Hawaii officer charged with sexual assault of girl while on duty, CNN (Jan. 15, 2016), https://www.cnn.com/2016/01/15/us/hawaii-dlnr-officer-ethan-ferguson-charge-sexual-assault/index.html

90 The four states that lack decertification authority are California, Rhode Island, Massachusetts, and New Jersey. See CAL. PEN. CODE § 13503; N.J.S.A. 40A:14-122; RI Gen L § 42-28.2-10; M.G.L.A. 6 § 116.. California’s POST Commission previously held limited authority to cancel officer certificates, but police unions successfully lobbied the state legislature to rescind the commission’s decertification power in 2003. See Roger L. Goldman, Importance of State Laws in Police Reform, 60 ST. LOUIS L. J. 363 (2016);.

91 Ohio’s POST commission has exceptionally limited decertification authority: the commission can revoke an officer’s license only based on a felony conviction or guilty plea, or when an officer charged with a felony agrees to surrender his certificate as part of a misdemeanor plea agreement. See OHIO REV. CODE § 109.77(F), §2929.43(D).

92 See e.g. ARIZ. ADMIN. CODE § R13-4-109(A)(8) (authorizing decertification when an officer commits “malfeasance, misfeasance, or nonfeasance in office”), (12); S.C. CODE REGS. § 37-026 (requiring decertification when the Council is presented with satisfactory evidence that an officer has committed misconduct as defined in applicable regulations) Neb.Rev.St. § 81-1403(6)(a) (authorizing decertification for violation of POST rules), North Dakota (same), 25 M.R.S.A. § 2806-A (authorizing decertification for “gross deviations from the standard of

Most POST commissions, however, rarely use these powers. Two states—Florida and

Georgia—were responsible for more than half of the 1,847 certification revocations in 2015.93

Twelve states that have decertification power that year either never used it, or used it only once or

twice.94 Even when officers commit crimes or egregious misconduct, POST commissions do not

consistently decertify them. A 2015 Wall Street Journal report analyzed a database of 3,458 police

officers across the United States whose arrests between 2005 and 2011 resulted in either

convictions, job termination, or both. Four years later, 332 of these officers—almost 10%—were

still working as police officers.95

There are multiple possible reasons why POST decertification power is currently underutilized. First, as shown in Parts I and II, many POST commissions do not view enforcement or public protection as important aspects of their mission, and their members are unlikely to see police accountability as central to their mandate. Additionally, in some states, the bar for decertification is too high to be useful. In several states, for example, misconduct is not grounds

for decertification unless it results in a criminal conviction.96 Such limitations make it extremely difficult for POST agencies to decertify officers who commit even serious forms of misconduct,

conduct to which a reasonable officer would adhere”), 13 AAC 85.110(b)(1) (authorizing decertification if an officer fails to maintain good moral character), F.S.A. §943.1395(1 (same); c.f. Colorado Rev. Stat. 24-31-305(2); 50 ILCS 705/6.1 (a),(e); Indiana Code § 5-2-1-12.5(a)(1); M.C.L.A. 28.609 sec. 9 (12); OHIO REV. CODE § 109.77(F), §2929.43(D); V.T.C.A., Occupations Code § 1701.501 (d)(1); VA Code Ann. § 15.2-1707(A)(ii)-(iv); U.C.A. 1953 § 53-6-211(1)(d).

93 Hickman supra note ___

94 Connecticut, Delaware, Indiana, Louisiana, Maryland, Minnesota, Mississippi, New Hampshire, North Dakota, Pennsylvania, South Carolina, and Wisconsin. See Hickman supra note ____.

95 Louise Radnofsky et al., Why Some Problem Cops Don’t Lose Their Badges, WALL STREET JOURNAL, (Dec. 30, 2016).

96 See e.g. 50 ILCS 705/6.1; Indiana Code 5-2-1-12.5; M.C.L.A. 28.609 § 9(12); ORC §109.77(F)(1)(a); Goldman and Puro (1987) supra note __ at 71.

25 such as excessive force, sexual harassment, or racial profiling.97 State legislatures could bolster police accountability by ensuring that POST agencies possess authority to discipline officers for on-the-job misconduct regardless of whether that conduct leads to a criminal conviction. 98

Moreover, most states give POST commissions broad discretion with respect to decertification decisions even in cases of severe misconduct. If an officer commits severe misconduct, POST commissions in most states may decertify the officer, but are not required to do so. More states could choose to follow the example of Oregon, where decertification is mandatory if an officer is terminated for corruption, false testimony, falsification of evidence, brutality, sexual abuse, intimidation, or deliberately obtaining false confessions.99 In addition,

Colorado recently passed a statute requiring decertification of any officer found civilly liable for excessive force or failure to intervene in excessive force.100

In addition, POST commissions typically lack the investigative staff and institutional resources that would be required to investigate and adjudicate officer decertification cases.

Currently, POST boards often require the officer’s own law enforcement agency to investigate misconduct complaints directed to the POST commission, rather than independently investigating those complaints.101 Self-investigation is not an effective way to ensure accountability for police misconduct. Ineffective accountability systems, inadequate supervision, and a culture of cover up

97 See Robert Lewis and David deBolt, Many California Cops Have Kept Their Jobs After Being Convicted of a Crime, Voice of San Diego (Nov. 10, 2019) https://www.voiceofsandiego.org/topics/public-safety/many-california- cops-have-kept-their-jobs-after-being-convicted-of-a-crime/ (finding that roughly one out of five California officers convicted of a crime kept their job for at least a year after conviction).

98 Goldman and Puro (1987) supra n. 28; Goldman and Puro (2001) supra n. 28; Goldman (2003) supra n. 28; Goldman (2012) supra n. 28, Goldman (2016) supra n. ___. 99 OAR 259-008-0070 (2)(a)(A).

100 Colorado S.B. 20-217.

101 See, e.g. Minnesota POST Board Complaint Process (2020) (“Investigations are not conducted by Board staff.”)

26 remain serious problems in many police departments.102 State legislatures should ensure that POST commissions have adequate staff and resources to investigate complaints of misconduct and take appropriate enforcement action.103

When professional regulatory bodies in other fields have increased resources for investigation, enforcement actions have increased accordingly. For example, in the 1980s, the

California State Bar faced strong criticism that its disciplinary system was slow, opaque and ineffective.104 The State Bar responded by overhauling its disciplinary procedures and dramatically increasing the resources dedicated to discipline. In 1985, the California Bar had a budget of $17.8 million, 44% of which was spent on professional discipline. By 1992, the Bar’s budget had increased to over $50 million, 75% of which was dedicated to professional discipline processes.105 During that timeframe, the number of attorneys disciplined by the State Bar each year more than doubled.106

Finally, POST commissions might use their decertification powers more frequently if

POST commissions had easier access to information about officer terminations and other

102 U.S. DOJ Civil Rights Division, The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994- Present (2017) (discussing several investigations revealing patterns of weak discipline and inadequate supervision); Carl B. Klockers, et al, The Measurement of Police Integrity, National Institute of Justice Research Brief (May 2000) https://www.ncjrs.gov/pdffiles1/nij/181465.pdf

103 In at least some states, including California, Oregon, and Mississipi, POST commissions obtain funding through assessments and surcharges on criminal and traffic convictions. See California POST website, https://post.ca.gov/About-Us (“POST funding comes from the State Penalty Fund, which receives money from penalty assessments on criminal and traffic fines.”); Oregon Rev. Stat. § 137.300), and Mississippi Code § 45-6-15. Funding obtained through assessments on criminal and traffic convictions may not be sufficient to support a full staff of investigators. Moreover, this funding stream necessarily entails a conflict of interest: training and regulation that reduces the number of arrests and citations would reduce the commission’s funding. POST commissions that are funded through state general funds or licensing fees for certified officers or trainers, could eliminate these conflicts of interest and put POST commissions in a better position to investigate citizen complaints and hold officers accountable for misconduct. 104 William Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar, 22 PEPPERDINE L. REV. 485, 603-4 (1995).

105 Id.

106 Id.

potentially concerning incidents. State legislatures could increase information available to POST

commissions by requiring police departments to notify POST if an officer is fired, resigns under

threat of termination, or faces an allegation of sexual assault, is involved in an officer-involved shooting, or takes any that results in serious injury or death. Such information-sharing could empower the POST commission to determine whether an investigation is warranted.

B. Screening Out Unfit Police Recruits Police officers must be subject to stringent requirements for certification because they alone are given the authority to take lives in the name of the state. When police departments fail to identify and

screen out dangerous or unfit recruits, tragedy can result. In November 2014, Cleveland Police

Officer Timothy Loehmann shot 12-year-old Tamir Rice on sight. The child had been holding a

toy gun on a public playground. Two years earlier, Loehmann had resigned from a police

department in Independence, Ohio under threat of termination for his repeated failure to follow

to directions on firearm safety and because became dangerously distracted and weepy during

firearms training.107 This history did not disqualify Loehmann from work as a police officer in the State of Ohio. Eight months after being hired by the Cleveland Police Department,108 he shot

Tamir Rice.109

Effective pre-employment screening is especially crucial to public protection because civil

service and union contracts typically make it difficult to remove officers after they are hired.110

For example, the police department of Springfield, Massachusetts has twice attempted to fire one

107 Tom McCarthy, Cleveland officer who fatally shot Tamir Rice judged unfit for duty in 2012, THE GUARDIAN (Dec. 4, 2014); https://www.buzzfeednews.com/article/alisonvingiano/loehmann-independence-records

108 Id.

109 Shaila Dewan and Richard A. Oppel Jr., In Tamir Rice Shooting In Cleveland Many Errors by Police, Then a Fatal One, N.Y. TIMES (Jan. 23, 2015).

110 See Rushin, supra note ___

officer for assaulting women both on and off-duty. Each time, the officer successfully challenged

his termination in arbitration.111

POST commissions can, if they choose, adopt standards and procedures for pre- employment screening that require all law enforcement agencies to filter out candidates with behavioral histories incompatible with good policing, such as violence, discrimination, extremism, poor anger management, or poor emotional regulation. The two most common pre-

employment screening tools prescribed by state law are background checks and psychological

fitness screenings.

1. Comprehensive ackground checks Currently, almost all states require prospective officers to complete some form of

background check before they can begin duty.112 The stringency of these background check

requirements, however, varies widely among states. POST commissions can increase the

likelihood that mandatory pre-employment background checks screen out candidates who might

harm the public by 1) setting clear and robust behavioral history standards for police candidates,

2) establishing thorough background check procedures, and 3) verifying that new police officers

satisfy the minimum requirements of their required background checks.

First, state legislatures and POST commissions should set minimum selection standards

designed to screen out individuals who are likely to engage in unethical, abusive or

111 Peter Goodman and Patrick Johnson, Twice-fired Springfield Police Officer Anthony Bedinelli has termination overturned, MASSLIVE.COM (Feb. 20, 2019), available at https://www.masslive.com/news/2019/02/twice-fired-springfield-police-officer-anthony-bedinelli-has-termination- overturned.html

112 cf LSA-R.S. 40:2403-2405.7 (setting minimum training standards but not minimum behavioral history standards); LA. ADMIN CODE. Tit. 22, pt. III, § 4703 (same); NEW JERSEY ADMIN. C 13:1-5.1 (setting minimum certification standards that do not include background check requirement), Ohio, 9 NYCRR 6000.4-.8 (setting physical fitness standards, but not moral character or background check requirements)

discriminatory policing. Currently, the minimum behavioral history standards assessed in

background checks vary from state to state. Most states disqualify prospective police officers

who have been convicted of felony offenses or specified misdemeanors.113 A majority also

specify that prospective officers must demonstrate “good moral character.”114 There is, however,

no uniformity in state regulations addressing what constitutes evidence of good moral character

or lack thereof.115 Factors commonly included in moral character definitions include criminal

history, past drug use, false statements to POST, and a history of discipline by a different state

POST commission.116 Many behavioral patterns highly relevant to public safety are

inconsistently or rarely mentioned in POST regulations defining moral character and other

minimum selection standards. Excessive force, sexual harassment and misconduct, dishonesty,

and hate group membershipare disqualifying in some states,117 but most state regulations do not

mention them.118 Some states leave “moral character” completely undefined.119 POST

commissions could, if they chose, require background checks to encompass not only criminal

history and drug use, but also histories of professional misconduct, domestic or other violence,

dishonesty, discrimination, or impulsive behavior.

113 See, e.g. Alaska, Colorado, Connecticut, Ohio,

114 Cf. Colorado, Connecticut, Massachusetts, Missouri, New York, Ohio, Oklahoma, Rhode Island, Virginia.

115 FL. ADMIN. CODE § 11B-27.0011(1-3); OAR 259-008-0010(6);U.C.A. 1953 § 53-6-203, 211;11 CAL. CODE REGS. § 1953; 12 NORTH CAROLINA ADMIN. C. § 09B .0101; NEB. ADMIN. R. & REGS. TIT. 79, CH. 8, § 005.02.

116 Id.

117 See, e.g. FLORIDA ADMIN. R. 11B-27.0022.

118 See, e.g. 12 NORTH CAROLINA ADMIN. C. § 09B .0101;

119 See, e.g. ARK. CLEST R. 1001, 1002(3)(3); ARSD 2:01:02:01 (4); TENN. COMP. R. & REGS. 1110-020.03 (1)(i);

Secondly, POST commissions should set clear and stringent background check

procedures to ensure that “red flags” in a police candidate’s behavioral history are identified.

Currently, the stringency of background checks mandated by POST commissions varies widely

from state to state. Some state POST commissions have adopted regulations setting minimum

areas of inquiry for pre-employment background checks.120 In California, for example, pre- employment background checks for police candidates are supposed to include criminal record checks, driving record checks, education verification, credit checks, military history checks, and divorce record checks, as well as interviews with relatives, neighbors, past employers, and former spouses.121 In Missouri, by contrast, prospective officers are only required to submit to a

simple fingerprint-based check against state and federal criminal records.122 Other POST

commissions are vague as to what a pre-employment background check should entail:

Montana’s POST regulations, for example, say only that the required background check should

verify an applicant’s good moral character and be “thorough.”123

Finally, POST commissions can promote police accountability by assuming greater

responsibility for verifying that new police officers meet the minimum selection standards required

by state law. Currently, POST commissions do not typically conduct their own background

investigations. Instead, POST commissions typically require the hiring police department to

conduct criminal or moral character background checks.124 While some POST commissions

120 See, e.g. NEVADA ADMIN. CODE § 289.110; 11 CAL. CODE REGS. § 1953; FLORIDA ADMIN. R. 11B-27.0022; N.H. CODE ADMIN. R. POL 301.05(M); 37 PA. CODE § 203.11; OREGON ADMIN. R. § 259-008-0015.

121 11 CAL. CODE REGS. § 1953.

122 11 MO. CODE OF STATE REGS. 75-13.020.

123 MONT. ADMIN. R. 23.13.201 (2)(e).

124 See e.g. 11 CAL. CODE REGS. §§ 1950, 1953; FLA. ADMIN. CODE RULE 11B-27.0022; 13 ARIZONA ADMIN. CODE § 4-106.

31 require the hiring department to submit verification that a background check was completed,125 they do not typically conduct routine review of investigative reports generated by hiring agencies.126

Hiring agencies conducting pre-employment background checks may face potential conflicts of interest. Many police departments around the United States are currently facing serious hiring shortages,127 and background check requirements may narrow a police department’s available applicant pool.128 In 2018, for example, roughly 85% of applicants to the Portland Police

Department (Portland PD) did not pass their background checks.129 While Portland PD, to its credit, was apparently willing to disqualify the majority of applicants due to unacceptable background check results, other departments have interpreted minimum selection standards loosely and discounted reports of troubling behavior in order to meet hiring goals. In 2009, for example, a local watchdog agency for the Los Angeles Sheriff’s Department (LASD) found that the department loosened its interpretation of minimum selection standards during a major hiring push, hiring multiple applicants who had criminal records or histories of misconduct as police

125 See, e.g. FLA. ADMIN. CODE RULE 11B-27.022; Florida Department of Law Enforcement Standards Form CJSTC-77, available at https://www.fdle.state.fl.us/CJSTC/Publications/Forms.aspx; 13 ARIZ. ADMIN. CODE § 4- 106.

126 In California, departments to retain narrative background reports for audit, but these are not reviewed pre- certification. See e.g. 11 CAL. CODE REGS. §§ 1950, 1953; see also POST Background Investigations Manual: Guidelines for the Investigator 2020, California Commission on Peace Officer Standards and Training (2020) at 4- 13, 4-15, available at https://post.ca.gov/portals/0/post_docs/publications/background-investigation- manual/Background_Investigation.pdf.

127 Kristine Frazo, Police staffing shortages a nationwide trend, WJLA.COM (Jan. 1, 2020), https://wjla.com/news/nation-world/police-staffing-shortages-a-nationwide-trend

128 Lindsay Nadrich, Portland police, struggling to find qualified candidates, have more than 100 openings, KGW.COM (May 22, 2019), https://www.kgw.com/article/news/local/portland-police-struggling-to-find-qualified- candidates-have-more-than-100-openings/283-1a138c49-d308-44df-9c3d-970c298f0803; Kevin Rector, Baltimore blames shortage of officers on background check backlog. But $1.5M to help fix it has gone unspent, THE BALTIMORE SUN (Feb. 20, 2019)

129 Id.

officers with other agencies.130 Many of these new officers went on to commit additional crimes

after being hired.131 In rural areas, the effects of hiring shortages can be even more severe. In

2019, ProPublica and the Anchorage Daily News reported that small villages in Alaska routinely

ignore minimum selection standards and background check requirements set by state law. In

Stebbens, Alaska, all seven officers on the city police force were men with prior convictions for domestic violence. Although Alaska law disqualifies individuals with domestic violence convictions from working as police officers,132 city administrators said they had been unable to find applicants without such histories.133 Given that most perpetrators of domestic violence are men,134 recruiting women to Stebbens’ all-male police force might have been an alternative to hiring a police force made up entirely of people convicted of domestic violence.

POST commissions might, like many state bar associations, hire or contract with their own

investigators to assess whether new police candidates meet the minimum behavioral history

standards set by state statutes and POST regulations.135 POST commissions could also require

background investigators to notify POST whenever they uncover evidence that a candidate may

130 Los Angeles County Office of Independent Review, Review of Los Angeles Sheriff’s Background Investigations Process (Feb. 18, 2009), available at http://shq.lasdnews.net/shq/LASD_Oversight/LASDBackground.pdf

131 Id.

132 13 ALASKA ADMIN. CODE 85.010(b)(1) 133 Kyle Hopkins, Dozens of convicted criminals have been hired as cops in rural Alaska. Sometimes, they’re the only applicants. ANCHORAGE DAILY NEWS (Jul. 18, 2019), available at https://www.adn.com/lawless/2019/07/18/the-alaska-village-where-every-cop-has-been-convicted-of-domestic- violence/

134 Bureau of Justice Statistics, Family Violence Statistics (Jun. 2005), available at https://www.bjs.gov/content/pub/pdf/fvs02.pdf (“Between 1998 and 2002...[m]ales accounted for 75.6% of family violence offenders.”)

135See http://www.ncbex.org/character-and-fitness/. [

have a history of violence, substance abuse, discrimination, or other disqualifying conduct—even

if the candidate denies the allegations or offers evidence of subsequent rehabilitation.

POST commissions can also discourage rehiring of problem officers from other agencies

by being more transparent with the public. More states could follow the example of Oregon’s

Department of Public Safety Standards and Training, which operates a publicly accessible online

database of law enforcement certification and decertification records.136 This step, though

standard among other professional governing bodies,137 is currently unusual among POST

commissions.138

Congress could also support the work of state POST commissions by creating a national

database of fired and decertified officers, similar to the National Practitioner Data Bank (NPDB)

for healthcare practitioners.139 A national database could require police departments to report officer terminations, resignations under threat of termination, civil judgments and settlement payments. Background investigators and hiring agencies could then query this database when conducting background checks on new hires.140

State legislatures could also direct POST commissions to create similar databases at the

state level. Colorado, for example, recently passed a statute requiring state database of officer

136 Oregon Criminal Justice Information Records Inquiry System (CJ IRIS),

http://dpsstnet.state.or.us/PublicInquiry_CJ/smsgoperson.aspx

137 Johnson & Chaudry supra note___ at 220-221

138 The exception is Oregon, which operates a publicly accessible database of officer certification status. See DPSST Information Records Inquiry System, https://www.oregon.gov/dpsst/PS/Pages/IRIS.aspx.

139 Final Report of the President’s Task Force on 21st Century Policing; See Wandering Officer at 1760-1 (proposing federal database of fired officers).

140 See Wandering Officer at 1760-1 (proposing federal database of fired officers).

untruthfulness, decertifications, and terminations.141 POST commissions can also contribute to—

and require hiring agencies to query—the National Decertification Index, a voluntary, partial

database of decertification actions maintained by the International Association of Directors of Law

Enforcement Standards and Training (IADLEST).142

2. Impartial Psychological Screenings Psychological fitness screenings are another commonly used tool for screening new

police hires. Twenty-five states require all prospective officers to demonstrate psychological

fitness prior to employment,143 and two additional states provide for conditional psychological

evaluation of candidates based on criminal history or when background investigations raise

questions about candidates’ emotional health or stability.144

Police officers have enormous discretion and must make judgments about use of force— including deadly force—in tense, time-pressured encounters.145 The ability to think clearly and

exercise good judgment under pressure is, for this reason, an essential job qualification for police

officers. A history of mental illness or mental health treatment should not necessarily be

disqualifying, and states should avoid adopting policies that would discourage officers from

seeking treatment for addiction, anxiety, depression, or post-traumatic stress disorder, all of

141 Colorado S.B. 20-217.

142 The NDI is not available to the general public but can be queried by hiring law enforcement agencies. https://www.iadlest.org/our-services/ndi/about-ndi

143 See 13 Alaska Admin. Code. § 85.010(a), Ark. Admin Code. § 132.00.1-1002(i)), 2 Cal. Code Regs. § 599.975, Colorado, Connecticut, Delaware, Iowa, Kansas, Kentucky, Maine, Maryland, Minnesota, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Tennessee, Texas, Vermont, Washington, Wyoming.

144 ALA. ADMIN. CODE r. 650-X-2-.05(3) (2017) (requiring psychological testing for those applicants with past, enumerated misdemeanor convictions); IDAHO ADMIN. CODE r. 11-11-01-061 (2017) (requiring psychological testing “where a question of emotional stability or disorder is indicated by physician or the background investigation. . .”).

145 See Graham v. Connor, 490 U.S. 386 (1989).

which police experience at high rates.146 Untreated or uncontrolled mental or substance abuse

disorders, on the other hand, may prevent some officers from discharging their duties

competently.

Pre-employment interviews by psychologists also provide an additional opportunity to

identify behavioral tendencies and patterns that are known predictors for future misconduct, such

as poor impulse control, cynicism, dishonesty, aggressive or antagonistic behavior, and

substance abuse.147 While some of these behavioral patterns might be identified in a thorough

investigative background check, criminal background checks are likely to miss problematic

behavior patterns that did not result in arrest or conviction. Even when an agency has conducted

a comprehensive background check, psychological interviews provide one way for agencies to

follow up on information obtained during a background check.

Among the states that require psychological evaluation of prospective officers, the

current stringency of POST regulations governing pre-certification psychological screening varies significantly. In Alaska, for example, a prospective officer must submit a form completed

and signed by a licensed psychologist or psychiatrist stating that the candidate is “mentally

capable of performing the essential functions of the job of police officer and is free from any

emotional disorder that may adversely affect the person's performance.”148 Psychological

evaluations limited to questions of mental capacity and the presence or absence of diagnosable

146 See Brian Chopko, Patrick Palmieri and Richard Adams, Associations Between Police Stress and Alcohol Use, 18 J. OF LOSS AND TRAUMA 482 (2013.

147 https://psycheval.com/wp-content/uploads/2016/07/Integrity-Project-Final-Report-12-19-04.pdf

148 See 13 ALA. ADMIN. CODE § 85.010(a)

36 mental disorders may not be sufficient to uncover behavior patterns incompatible with good policing, such as violence, poor impulse control, and discrimination.149

In California, by contrast, POST regulations specify that pre-certification mental evaluation must consider not only the presence of emotional disorders, but whether the candidate has any “job relevant psychological, emotional or mental traits [or] characteristics" that might adversely affect performance.150 A qualified mental health professional must interview each prospective officer and submit a detailed report to the screening program’s chief psychologist explaining whether the candidate meets the minimum psychological standards for appointment, which include social competence (including cultural competence and tolerance), adaptability, impulse control, integrity, stress tolerance, decision making, and avoidance of substance abuse and other risk-taking behavior.151 Several statesrequire prospective officers to submit to written psychological tests as well as psychological interviews.152There is at least some evidence that certain pre-hire psychological tests, such as the Minnesota Multiphasic Personality Inventory 2

(MMPI-2), predict future misconduct by police applicants.153 POST commissions that use

149 James F. Albrecht. POLICE BRUTALITY, MISCONDUCT AND CORRUPTION: CRIMINOLOGICAL EXPLANATIONS AND POLICY IMPLICATIONS 37-39 (2017); Ellen M. Scrivner, The Role of Police Psychology in Controlling Excessive Force. Report Presented to the National Institute of Justice (1994). [look for better citations]

150 2 Cal. Code Regs. § 599.975.

151 Id.; see also https://post.ca.gov/portals/0/post_docs/publications/Peace_Officer_Psychological_Screening_Manual.pdf 152 Id. [Add extra]

153 Martin Sellbom, Gary Fischler, & Yossef Ben-Porath, Identifying MMPI-2 Predictors of Police Officer Integrity and Misconduct, 34 CRIM. J. AND BEHAVIOR 985-1004 (2007) https://journals.sagepub.com/doi/10.1177/0093854807301224; A re-examination of the MMPI-2 aggressiveness and immaturity indices in law enforcement screening | SpringerLink; MMPI Profiles of Problem Peace Officers: Journal of Personality Assessment: Vol 52, No 4; Bartol, C. R. (1991); Predictive validation of the MMPI for small- town police officers who fail. Professional Psychology: Research and Practice, 22(2), 127– 132. https://doi.org/10.1037/0735-7028.22.2.127.; Harris-Lingoes MMPI–2 Pd Subscales and the Assessment of Law Enforcement Candidates - Alfred D. Kornfeld, 2000; Roberts, Predicting Postprobationary Job Performance of Police Officers Using CPI and MMPI–2–RF Test Data Obtained During Preemployment Psychological Screening

psychological evaluations like the MMPII-2 should, however, care to recognize limitations and cultural biases in psychological tests to avoid disproportionately excluding nonwhite applicants.154

POST commissions in jurisdictions that require psychological screening should ensure that screenings are designed to elicit information about behavior patterns and attitudes that are incompatible with fair and equitable policing. In addition, POST commissions could study and

ultimately require screening tools specifically designed to assess candidates for the risk of

discriminatory behavior—something that current psychometric tests are not designed to do.155

C. Reshaping Police Standards and Culture

In addition to protecting the public from dangerous officers, POST commissions can also

help to protect the public from dangerous or discriminatory norms and customs within police

departments. This section examines two important powers that allow POST commissions to

influence police professional norms. First, POST commissions generally have extensive power

to regulate police training. Second, POST commissions in some states can also set mandatory

minimum floors for policies such as nondiscrimination, crowd management, and use of force.

POST commissions can use these powers to build professional norms of conduct that

help to protect heavily policed communities. While organizational change and increased

154 The MMPI-2 includes, for example, scales that measures paranoia and “persecutory ideas.” High scores on these measures are thought to suggest that someone is suspicious of others and thinks others are out to get them. Some psychologists have argued, however, that a non-white applicant might have an elevated score on this scale in the absence of any underlying mental or personality disorder due to life experiences with discrimination and harassment, which could harm their success on the test. See, e.g. Tom Avril, Racial disparity in police screening linked to one-test method, THE PHILADELPHIA INQUIRER (Jan. 22, 2016), available at http://www.philly.com/philly/health/20160122_Racial_disparity_in_police_screening_linked_to_one- test_method.html.

155 CITE

38 accountability are crucial to ensuring that departments implement policies in good faith, POST commissions can create training and policy norms that reflect constitutional norms, state laws, and community values. In addition, social science research suggests that as a general matter, people are less likely to engage in discriminatory or violent behavior when norms of expected behavior are clear and unambiguous.156

1. Police Training and Continuing Education

Police training profoundly influences the culture of policing. Most police academy training curricula allocate many more hours teaching applicants how to shoot a gun than they spend on de- escalation. 157 Most officers will never fire a gun in their entire career158 but nearly all officers will often face the much more common challenge of de-escalating an interaction with a person in mental health crisis. 159 Many police training curricula teach officers that policing is extremely dangerous to the police officer and that their single most important goal as an officer is to make it home at the end of each shift.160 Such curricula train officers to fear the people they are sworn to serve and protect, and leave them underprepared to resolve tense situations without resorting to force.161

156 Phillip Atiba Goff and Hilary Rau, Predicting Bad Policing, 687 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 67–88 (2020).

157 Police Executive Research Forum, Re-Engineering Training on Police Use of Force (2017), available at https://www.policeforum.org/assets/reengineeringtraining1.pdf

158 Rich Morrin and Andrew Mercer, A closer look at police officers who have fire their weapon on duty, Fact Tank, Pew Research Center (Feb. 8, 2017) https://www.pewresearch.org/fact-tank/2017/02/08/a-closer-look-at- police-officers-who-have-fired-their-weapon-on-duty/

159 Police Executive Research Forum, Re-Engineering Training on Police Use of Force (2017), available at https://www.policeforum.org/assets/reengineeringtraining1.pdf

160 Stoughton, Principled Policing, supra n ___

161 Seth Stoughton, a law professor and former police officer, reports that in the police academy, “[o]fficers learn to treat every individual they interact with as an armed threat and every situation as a deadly force encounter in the making … everyone is a threat until conclusively proven otherwise.” Id.

POST commissions can transform the messages that police officers receive through

training. They have broad influence over the curriculum, rigor, and methodology of police training.

They certify and in many cases operate basic training academies that all new police hires must

attend. They enforce minimum training requirements set by statute, and they have broad powers

to set additional training requirements.162 POST commissions regulate the number of training

hours that officers must complete and the topics that training must cover.163 POST commissions

determine which academies, instructors, and courses satisfy training requirements164 and, in some

states, determine which law enforcement training programs can be reimbursed with state funds.165

POST commissions can and should leverage their powers over police training to promote equitable

policing and reduce unnecessary use of force.

POST commissions can require both initial and in-service training that will equip officers

to resolve situations equitably and without unnecessary force. They can, for example, require

training on topics like de-escalation, crisis intervention, procedural justice, bias-free policing, and

interactions with vulnerable groups such as people with limited English proficiency, people in

mental-health crisis, Deaf people and others with disabilities, immigrants, and victims of sexual

assault and domestic violence. Many POST commissions already engage in this work: since 2014,

162 See, e.g. ALASKA STAT. § 18.65.220; I.C. § 19-5109 (1)(a), (d); McKinney's Executive Law § 840 (1)(b), (d); FLORIDA STAT. ANN. § 943.12; M.C.L.A. § 28.609; O.R.S. § 181A.365 (5)(e.).

163 See, e.g. 11 CAL. CODE REGS. §§ 1005, 1011, 1011, 1051-84; 9 NYCRR 6025.3-.5

164 See, e.g. FLA. ADMIN. CODE r. 11B-20.001 to 21.002; IDAHO CODE §§ 11.11.01.251-254; IOWA CODE §§ 501- 4.1 to 4.4 (80B)

165 See, e.g. MN Rules §6700.1800.

40 several POST commissions increased requirements for police training on crisis intervention, de- escalation, and mental health.166

POST commissions can also influence professional norms in the field of policing by adopting and enforcing training standards that emphasize restraint, de-escalation, and respect for human life, dignity, and privacy. POST commissions can, for example, require that police academies train officers to exhaust all other alternatives before resorting to deadly force—a higher bar than the minimum constitutional standard that police force be “objectively reasonable” under the circumstances.167

The professional norms communicated in POST training curricula can even influence how courts interpret the scope of constitutional protections against excessive force. While federal courts emphasize that police violation of an internal policy or state law does not necessarily mean that any constitutional violation has taken place,168 some courts permit evidence in civil rights cases

166 Center for State Governments Justice Center and the International Association of Directors of Law Enforcement Standards and Training, The Variability in Law Enforcement State Standards: A 42-State Survey on Mental Health and Crisis De-escalation Training (Jan. 2017), https://csgjusticecenter.org/wp- content/uploads/2020/02/JC-LE-Survey.pdf; Marshall Griffin, New Training Standards for Missouri Law Officers Include De-escalation Techniques, St. Louis Public Radio (Dec.1, 2015).https://news.stlpublicradio.org/post/new- training-standards-missouri-law-officers-include-de-escalation-techniques#stream/0; David Hun, Nixon directs commission to boost police officer training, St. Louis Post Dispatch (Aug. 6, 2015) https://www.stltoday.com/news/local/crime-and-courts/nixon-directs-commission-to-boost-police-officer- training/article_b33ca859-019e-5d2a-98d2-432e7510d54e.html

167 Graham v. Connor, 490 U.S. 386 (1989).

168 See, e.g. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“[T]here is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations.”); Holland v. City of New York, 197 F. Supp. 3d 529, 549 (S.D.N.Y. 2016); Case v. Kitsap County Sheriff's Dep't, 249 F.3d 921, 930 (9th Cir.2001) (quoting Gardner v. Howard, 109 F.3d 427, 430 (8th Cir.1997) (“[T]here is no § 1983 liability for violating prison policy. [Plaintiff] must prove that[the official] violated his constitutional right ....”)); Gagne v. City of Galveston, 805 F.2d 558, 560 (5th Cir.1986) (“[A]llegations about the breach of a ... regulation are simply irrelevant to the question of an official's eligibility for qualified immunity in a suit over the deprivation of a constitutional right.”).

41 that a defendant violated standard police practices.169 If all officers in a state are trained to follow a particular standard when using force or making an arrest, then a jury might conclude that the

“reasonable officer” who serves as the benchmark in Fourth Amendment cases would also conform to that standard. Accordingly, a few courts have explicitly considered POST standards in determining whether a law enforcement officer used excessive in violation of the Fourth

Amendment170 or whether a law enforcement executive is responsible for an unconstitutional failure to train.171 Thus, POST commission regulation of police training could impact not only police culture, but the potentially the judiciary’s view of use of force as well.

Finally, POST commissions could decertify training courses that promote overly aggressive, “warrior” approaches to policing, meaning that such courses would not count toward

POST training requirements and would not be eligible for reimbursement through state training funds. Activists in Minnesota, for example, have called on the state POST commission to decertify a popular police training known as “Bulletproof Warrior” that has received national criticism for

169 See, e.g. Abdullahi v. City of Madison, 423 F.3d 763, 772 (7th Cir. 2005) (“the plaintiff's proffered expert testimony that Brooks's tactics violated standard police practices, while not dispositive, may also be deemed relevant to the reasonableness inquiry…”); Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013) (noting that it was appropriate for police-practices expert to “describe[e] sound professional standards and identify[ ] departures from them” (internal quotation marks omitted));Restivo v. Hessemann, 846 F.3d 547, 580 (2d Cir. 2017) (holding that district court properly admitted expert testimony on “what minimally accepted police practices required and about his opinion that [the defendant’s] conduct departed from accepted police practices.”); Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017) (“officials are expected to use the benefit of their expertise and professional training when confronted with situations in which they are responsible for preventing harm to other individuals”)

170 See, e.g. Young v. Cty. of Los Angeles, 655 F.3d 1156, 1162 (9th Cir. 2011) (Considering evidence regarding California POST curriculum on pepper spray in assessing the reasonableness of deputy’s use of pepper spray in Fourth Amendment case); Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (holding that a reasonable jury can could consider whether officer’s actions comported with standards set by state POST board in assessing whether use of force was reasonable).

171 See Newsome v. Higham, No. 7:08-CV-8 (HL), 2010 WL 1258013, at *5 (M.D. Ga. Mar. 29, 2010) (holding that a jury could find that a sheriff was liable for failure to train a prison official who sexually assaulted a prisoner based on evidence that the sheriff allowed correctional officer to work without completing minimum POST training); see also Garrett and Stoughton, supra note 10.

promoting a fear-based approach to police-community encounters and for warning officers that hesitating to use deadly force in an encounter with a member of the public could get them killed.172

Minnesota officer Jeronimo Yanez reportedly attended a Bulletproof Warrior training before he

shot Philando Castile at a traffic stop in 2016.173 Decertifying and defunding inappropriate training curricula would not only reduce the number of officers who attend them, but would also convey a strong message to departments that fear-based training philosophies are unacceptable and fall beneath the minimum standards of the profession.

2. Model Policies and Minimum Policy “Floors”

POST Commissions can also influence police standards and behavior by adopting model

policies or policy “floors” that limit police departments’ rulemaking discretion and promote

police accountability. While written law enforcement policies are not a panacea, they establish a

foundation for police accountability: officers cannot be held accountable for violating a standard

that was never established.

After Minneapolis police officer Derek Chauvin killed George Floyd by kneeling on his

neck for almost nine minutes, many municipalities and police departments across the United

States amended their policies to prohibit the use of chokeholds and other neck restraints.174

POST commissions could, if empowered by the state legislature, require departments across an

entire state to adopt similar reforms.

172 Jennifer Bjorhus, State police licensing board plans response to failings in Minnesota's rape investigations, STAR TRIBUNE (JULY 27, 2018); http://www.startribune.com/minnesota-police-licensing-board-to-address-failings- in-rape-investigations/489240711/; Mitch Smith and Timothy Williams, Minnesota police officer’s Bulletproof Warrior training is questioned, N.Y. TIMES (Jul. 14, 2016); https://www.nytimes.com/2016/07/15/us/minnesota- police-officers-bulletproof-warrior-training-is-questioned.html

173 Jennifer Bjorhus, Officer who shot Castile attended bulletproof warrior training, STAR TRIBUNE (JUL. 14, 2016), http://www.startribune.com/officer-in-castile-case-attended-bulletproof-warrior-training/386717431/

174 Harmeet Kaur and Janine Mack, The cities, states and countries finally putting an end to police neck restraints CNN (Jun. 16, 2020); https://www.cnn.com/2020/06/10/world/police-policies-neck-restraints-trnd/index.html; Seattle CB 119804.

In several states, POST commissions have the power to develop model policies or minimum policy standards on topics identified by state law.175 POST commissions have adopted model policies addressing use of force,176 police pursuits,177 sexual assault and domestic violence investigations,178 use of electronic weapons,179 fair and impartial policing,180 and procedures for investigating complaints against officers.181 Some states’ POST model policies are nonbinding recommendations of best practices,182 others require police departments to enact

175 See CAL. PENAL CODE § 13516, 13517, 13517.5, 13517.7; CONN. GEN. STAT. § 7-294O; FLORIDA STAT. § 943.1701; 50 ILCS 705/7.5; MD CODE §3-207 (E.) MASS. GEN. L. 6 § 116A(A); MINN. STAT. §§ 626.8454, 626.8457, 626.8458, 626.8471; N.H. REV. STAT. § 106-L:5 (XI); MCKINNEY'S EXECUTIVE LAW § 840 (1)(J), (K), (3)(F), (F-1), (G), (4)(A); U.A.C. R728-503; 20 VERMONT STAT. § 2366, 2402; VA CODE § 9.1-102 (37); RCWA 43.101.226; W.S.A. 165.85 (4)(D); 165.85 (4)(E.)(1).

176 Connecticut POST Model Policy, Use of Conducted Electrical Weapons, available at https://portal.ct.gov/- /media/POST/GENERAL_NOTICES/2014/GN1402USEOFELECTRONICWEAPONSPUBLICACT14149pdf.pdf Maine Criminal Justice Academy Board of Trustees Minimum Standards on Use of Force, available at https://www.maine.gov/dps/mcja/training/index.htm, Minnesota POST Use of Force Model Policy, available at https://dps.mn.gov/entity/post/model-policies-learning-objectives/Pages/default.aspx.

177 50 ILCS 705/7.5, MINN. STAT. § 626.8458, U.A.C. § R728-503; VA CODE § 9.1-102 (37); RCWA 43.101.226; W.S.A. § 165.85 (4)(d); 165.85 (4)(e.)(1); WIS. ADM. CODE § LES 3.07; Maine Criminal Justice Academy Board of Trustees Minimum Standards, available at https://www.maine.gov/dps/mcja/training/index.htm; Connecticut POST Model Pursuit Policy https://portal.ct.gov/-/media/POST/GENERAL_NOTICES/2019/19-04- Updated-Model-Pursuit-Policy.pdf

178 See, e.g. CAL. PEN. CODE § 13516, 13517, 13517.5, 13517.7; Maine Criminal Justice Academy Board of Trustees Minimum Standards, supra n_, Massachusetts, MN STAT 629.342, VA Code Ann. § 9.1-102 (37).

179 Connecticut Public Act 14-149, “An Act Concerning the Use of Electronic Defense Weapons by Police Officers.”

180 Maine Criminal Justice Academy Board of Trustees Minimum Standards, supra n_, MN STAT §626.8471, V.S.A. § 2366 VA Code Ann. § 9.1-102 (37).

181 Vermont, Minnesota POST Allegations of Misconduct Model Policy, available at https://dps.mn.gov/entity/post/model-policies-learning-objectives/Pages/default.aspx,

182 See, e.g. Wis. Adm. Code § LES 3.07.

POST-prescribed policies,183 and still others set mandatory floors that all law enforcement

agencies within the state must meet.184

Unlike POST power to set minimum training standards, POST power to set minimum

policy floors is, currently, typically limited to specific topics.185 State legislatures could give

POST commissions broader authority to set policy floors for the purpose of protecting the public

from police misconduct, discrimination, and unnecessary force. This would allow POST

commissions to work more proactively to set minimum policy standards before a national

tragedy draws attention to a specific issue.

POST commission policymaking power could also help to provide an important

counterbalance to the increasing privatization of police policymaking. As Ingrid Eagly and

Joanna Schwartz have reported, over 3,000 law enforcement agencies in thirty-five states

contract with private police policymaking company Lexipol to author their policy manuals. Over

95% of the law enforcement agencies in California have Lexipol-created policies.186 Eagly and

Schwartz note that while companies like Lexipol provide a valuable service to some small

departments, “reliance on this private entity to establish standards for public policing also raises

several concerns arising from its for-profit business model, focus on liability risk management,

and lack of transparency or democratic participation.”187 Lexipol has urged law enforcement

183 See, e.g. GA. CODE ANN. § 35-8-26 (requiring Georgia law enforcement agencies to adopt written policies on TASERs that are consistent with POST training standards.)

184 See, e.g. 20 VERMONT STAT. § 2366; Maine Criminal Justice Academy Board of Trustees Minimum Standards, available at https://www.maine.gov/dps/mcja/training/index.htm; Connecticut Public Act 14-149, “An Act Concerning the Use of Electronic Defense Weapons by Police Officers.”

185 See, e.g. MN STAT § 626.8458, subd. 2 (“ By July 1, 1999, the board shall adopt a new or revised model policy governing the conduct of peace officers who are in pursuit of a vehicle being operated in violation of section 609.487”).

186 Eagly and Schwartz, supra note ___

187 Id.

45 agencies to reject reforms suggested by leading law enforcement industry groups like the Police

Executive Research Forum (PERF). Lexipol has, for example, cautioned departments not to adopt use of force policies more stringent than the constitutional floor set in Graham v.

Connor188 and objected to PERF’s suggestion that sanctity of life should be the central principle of every use of force policy.189

If POST commissions adopt model policies or policy floors for key policy areas like use of force, force investigations, and racial profiling, all law enforcement agencies—even those that utilize companies like Lexipol—will have to draft policies that comply with these state standards. POST commissions can therefore ensure that key police department policies prioritize protection of the public from misconduct over protection of police departments from lawsuits.

CONCLUSION

POST regulation of policing must do more than ensure that officers know how to investigate crimes and shoot straight. It must place protection of the public as its highest goal, as the governing bodies of other regulated professions do. The public must be protected not only against the harms of crime, but also against the harms of police misconduct, discrimination and violence. For POST commissions to fulfill their potential as agents for police accountability, structural change will be needed. Legislatures must give POST commissions a clear mandate to use their powers to promote equity and protect the public from misconduct. They must also

188 Bruce Praet, National Consensus Policy on Use of Force Should Not Trigger Changes To Agency Polices, Lexipol Blog, (Jan. 25, 2017), https://www.lexipol.com/resources/blog/use-caution-when-changing-use-of-force- policy-language/ (“While ‘de-escalation’ has become the latest buzzword and is conceptually advisable, agencies must exercise extreme caution when mandating action with the use of inflexible ‘shalls.’”)

189 Michael Ranalli, Priority of Life: Building a Better Model for PERF’s First Guiding Principle, Lexipol Blog (June 8, 2016) https://www.lexipol.com/resources/blog/priority-life-building-better-model-perfs-first-guiding- principle-2/

46 ensure that POST commissions include substantial representation for communities that experience the greatest burdens of harm due to policing. With these structural changes, POST commissions may become agents that can regulate policing to promote justice.