Draft—Please do not circulate or cite without permission of the authors State Regulation of Policing: POST Commissions and Police Accountability 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 2 3 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. 3 4 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. 4 5 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