Decertification of Police: An Alternative
to Traditional Remedies for Police
Misconductt
By

ROGER GOLDMAN* AND STEVEN PURO**

Introduction
In order to enforce the fourth amendment guaranty of freedom from
unreasonable searches and seizures,l the Supreme Court developed the
remedy of excluding evidence obtained by unconstitutional means from
use in prosecuting the individual who was the object of the unlawful
search or seizure. 2 Several purposes have been advanced by the Court to

t The research for this Article was supported in part by grants from the Beaumont
Faculty Development Fund, St. Louis University.
* Professor of Law, St. Louis University; A.B., Harvard College, 1963; J.D., University
of Pennsylvania, 1966.
** Associate Professor of Political Science, St. Louis University; B.A., Brooklyn College,
1964; M.A., Ph.D., State University of New York at Buffalo, 1971.
1. In relevant part, the United States Constitution guarantees: "The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized." U.S. CONST. amend. IV; "No person shall be ... deprived of life, liberty,
or property, without due process oflaw .... " U.S. CONST. amend V; "In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence."
U.S. CONST. amend. VI; "[N]or shall any State deprive any person of life, liberty, or property,
without due process of law ...." U.S. CONST. amend. XIV.
2. Boyd v. United States, 116 U.S. 616, 633-35 (1886) (holding forced disclosure of papers violated both the fourth and fifth amendment privileges against self-incrimination and the
papers were therefore inadmissable as evidence in a forfeiture proceeding); Weeks v. United
States, 232 U.S. 383 (1914) (applying fourth amendment exclusionary rule to federal criminal
prosecutions). See also Mapp v. Ohio, 367 U.S. 643, 650 (1961) (applying exclusionary rule to
state courts by incorporation of the fourth amendment guaranty of privacy through the Due
Process Clause of the Fourteenth Amendment); Schneckloth v. Bustamonte, 412 U.S. 218,
248-49 (1973) (applying exclusionary rule where state did not secure voluntary consent prior
to search of suspect not in custody).
The distinction between exclusionary rule application in fourth amendment search and
seizure cases as opposed to application in fourteenth amendment coerced confession cases was
made by Justice Harlan, dissenting in Mapp v. Ohio. He said that the purpose of the fourth
amendment exclusionary rule is to discipline the police whereas the purpose of excluding coerced confessions is to protect the fairness of the trial. 367 U.S. at 680-84 (Harlan, J., dissenting). See also Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (distinguishing fourth
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justify the exclusionary rule, including "the necessity for an effective deterrent to illegal police action";3 the "imperative of judicial integrity"
such that courts do not become "accomplices in the willful disobedience
of a Constitution they are sworn to uphold,,;4 and the need for an assurance to "all potential victims of unlawful government conduct that the
government would not profit from its lawless behavior, thus minimizing
the risk of seriously undermining popular trust in government."s In its
recent attempts to clarify the scope of the exclusionary rule, however, the
Court has made clear that its concern lies only with the deterrent function of the rule. 6 '
Almost from its inception, courts have been reluctant to apply the
exclusionary rule. This judicial ambivalence is crystallized in the statement by Judge (later Justice) Cardozo that "[t]he criminal is to go free
because the constable has blundered.'" Nonetheless, the rule remains an
important feature of constitutional law, in part because courts have
found no other effective alternatives for guarding against illegal searches
and seizures.
Beginning in the 1970s, individual members of the Supreme Court
expressed doubts about the effectiveness of deterring police misconduct
by excluding illegally obtained evidence. 8 In 1984, the Court ruled that
the exclusionary rule does not apply to evidence obtained by police relyamendment rights from those constitutional rights that preserve a fair trial). Cases interpreting the fifth amendment privilege against self-incrimination invoked by suspects being questioned in police custody share some of the characteristics of the fourth amendment cases-a
concern with deterring police from violating the privilege-but the fifth amendment cases also
protect the fairness of trial by not using confessions obtained in violation of the privilege. The
suspect's sixth amendment right to counsel at pretrial lineups, United States v. Wade, 388 U.S.
218 (1967), or when the police deliberately attempt to elicit a confession, l\1:assiah v. United
States, 377 U.S. 201 (1964), also implicates the fairness of the trial by protecting the adversary
nature of the criminal justice system once the prosecution has begun, United States v. Ash, 413
U.S. 300 (1973). However, exclusionary rule application in the right to counsel cases also has
been concerned with deterring police from violating constitutional rights. Wade, 388 U.S. at
236-37.
3. Linkletter v. Walker, 381 U.S. 618, 636-37 (1965).
4. Elkins v. United States, 364 U.S. 206, 222-23 (1960).
5. United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting).
6. For example, the majority in Calalldra held that a grand jury witness may not refuse
to answer questions on grounds that they are based on illegally seized evidence because any
"incremental deterrent effect which might be achieved by extending the [exclusionary] rule to
grand jury proceedings is uncertain at best." Id. at 35 J.
7. People v. Defore, 242 N.Y. 13,21, 150 N.E. 585, 587 (1926).
8. See, e.g., Bivens v. Six Unknown Agents, 403 U.S. 388,415-16,420 (1971) (Burger.
c.J., dissenting) (favoring abandonment of the rule, although the Court should not eliminate
the rule "until some meaningful substitute is developed .... "); Stone v. Powell. 428 U.S. 465,
538 (1976) (White, J. dissenting) (The exclusionary rule "should be substantially modified so
as to prevent its application in those many circumstances where the evidence at issue was

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ing in good faith on an invalid search warrant. 9 More recently, the Court
refused to exclude illegally obtained evidence from use in civil deportation proceedings. 1O The premise of both majority opinions was that the
deterrence achieved could not, under the circumstances, justify the exclusion of the evidence. 1 1
A further erosion offourth amendment protection need not be inevitable. As an alternative to, or even as a complement of, the exclusionary
rule, states can deter police misconduct by decertification of the officer,
that is, by revoking the officer's state certification for constitutional violations in evidence gathering. With the exception of Hawaii, all the states
have boards or commissions, commonly called Peace Officer Standards
and Training (p.O.S.T.) Boards, which have the authority to set training
and selection standards. Without a certificate, an individual cannot be
employed as a police officer in that state. I2 In short, the P.O.S.T. Board
seized by an officer acting in the good faith belief that his conduct comported with existing law
and having reasonable grounds for this belief.").
For discussion of the effectiveness of the exclusionary rule, see Kamisar, Is the Exclusionary Rule an "Illogical" or "Unnatural" Interpretation of the Fourth Amendment?, 62 JUDICATURE 66 (1978); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L.
REV. 665 (1970); Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 JUDICATURE 214 (1978).
9. United States v. Leon, 468 U.S. 897, reh'g denied, 468 U.S. 1250 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984).
Although there has been no fifth or sixth amendment "good faith exception" case, the
Court also is clearly cutting back on the scope of the protection of fifth amendment rights first
given defendants in Miranda v. Arizona, 384 U.S. 436 (1966). See, e.g., New York v. Quarles,
467 U.S. 649 (1984) (adoption of public safety exception; Miranda warnings are prophylactic
measures, not constitutional rights.) The sixth amendment right to counsel has similarly been
cut back. Compare United States v. Wade, 388 U.S. 218, 223-27 (1967) (Sixth Amendment
guarantees right to counsel at any critical confrontation by prosecution prior to trial) with
Kirby v. Illinois, 406 U.S. 682, 688-91 (1972) (line up without counsel pre-indictment does not
violate the Sixth Amendment). The Court continues to distinguish between violations of the
Fifth and Sixth Amendments and violations of the Due Process Clause of the Fourteenth
Amendment, treating the latter as more deserving of concern. For example, in the Sixth
Amendment, compare Kirby, supra with Stovall v. Denno, 388 U.S. 293, 302 (1967) (line up
that is unnecessarily suggestive can violate due process); in the Fifth Amendment, compare
Harris v. New York, 401 U.S. 222, 224 (1971) (Miranda violation can be used to impeach
defendant's testimony) with Mincey v. Arizona, 437 U.S. 385, 401-02 (1978) (coerced confession in violation of due process cannot be used for impeachment purposes).
In sum, the Court may one day treat the fifth and sixth amendment exclusionary rules in a
comparable way to its treatment of the fourth amendment exclusionary rule by focusing solely
on the deterrence rationale. If that occurs, the Court will surely look to whether there are
alternatives justifying replacement of the rule.
10. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
11. Leon, 468 U.S. at 918-19; Lopez-Mendoza, 468 U.S. at 1041-42.
12. See. e.g.• Alabama Peace Officers' Standards and Training Comm'n, ALA. CODE
§§ 36-21-40 to 36-21-50 (1975 & Supp. 1986); Alaska Police Standards Council, AI.ASKA
STAT. §§ 18.65.130-18.65.290 (1986); Arizona Law Enforcement Officer Advisory Council,

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serves as the licensing agency for law enforcement personnel within the
state.
ARIZ. REV. STAT. ANN. §§ 41-1821 to 14-1828 (1985 & Supp. 1985); Arkansas Comm'n on
Law Enforcement Standards and Training, ARK. STAT. ANN. §§ 42-1001 to 42-1009, 42-701.1
to 42-708 (1977 & Supp. 1985); California Comm'n on Peace Officer Standards and Training,
CAL. PENAL CODE §§ 13510-13519 (West 1982 & Supp. 1987); Colorado Law Enforcement
Training Academy and Peace Officers, Standards and Training, COLO. RE\,. STAT. §§ 24 1128.6 (Supp. 1986); Municipal Police Training Council, CONN. GEN. STAT. ANN. §§ 7-294a to
7-294g (West 1983); Delaware Council on Police Training, DEL. CODE ANN. tit. 11, §§ 84018410 (1974 & Supp. 1986); Florida Criminal Justice Standards and Training Comm'n, FLA.
STAT. ANN. §§ 943.09-943.26 (West 1985 & Supp. 1987); Georgia Peace Officers Standards
and Training Council, GA. CODE ANN. §§ 35-8-1 to 35-8-19 (Supp. 1987); Idaho Peace Officer
Standards and Training Council, IDAHO CODE §§ 19-5101 to 19-5116 (1979 & Supp. 1986);
Illinois Local Gov't Law Enforcement Officers Training Bd., ILL. REV. STAT. ch. 85, para.
501-512 (1987); Indiana Law Enforcement Training Bd., IND. CODE §§ 5-2-1 to 5-2-15 (1982
& Supp. 1987); Iowa Law Enforcement Academy Council, IOWA CODE §§ 80B.I-80B.15
(1984 & Supp. 1987); Kansas Law Enforcement Training Comm'n, KAN. STAT. ANN. §§ 745601 to 74-5610 (1985); Kentucky Law Enforcement Council, Ky. REV. STAT. ANN.
§§ 15.310-15.370 (Michie/Bobbs-Merrill 1985); Louisiana Peace Officers Standards and Training Council, LA. REV. STAT. ANN. §§ 2401-2406 (West 1977 & Supp. 1987); Maine Criminal
Justice Acad.emy Bd., ME. REV. STAT. ANN. tit. 25, §§ 2801-2808 (1974 & Supp. 1986);
Maryland Police Training Comm'n, MD. ANN. CODE art. 41, § 70A (1957 & Supp. 1985);
Massachusetts Police Training School Requirements, MASS. GEN. LAWS ANN. ch. 41, § 96B
(West 1979 & Supp. 1987); Michigan Training School for Police Officers, MICH. COMPo LAWS
ANN. §§ 28.221-28.225 (West 1987); Minnesota Bd. of Peace Officer Standards and Training,
MINN. STAT. ANN. §§ 626.84-626.861 (West 1983 & Supp. 1987); Mississippi Bd. on Law
Enforcement Officer Standards and Training, MISS. CODE ANN. §§ 45-6-1 to 45-6-17 (1983);
Missouri Dep't of Pub. Safety Peace Officer Standards and Training Program, Mo. ANN.
STAT. §§ 590.100-590.135 (Vernon 1979 & Supp. 1987) (Director of Public Safety has powers
of P.O.S.T. Board); Montana Bd. of Crime Control, MONT. CODE ANN. §§ 7-32-301 to 7-32304 (1983); Nebraska Comm'n on Law Enforcement and Criminal Justice, NEB. REV. STAT.
§§ 81-1401 to 81-1427 (1981 & Supp. 1986); Nevada Peace Officers' Standards and Training
Comm'n, NEV. REV. STAT. § 481.053 (1985); New Hampshire Police Standards and Training
Council, N.H. REV. STAT. ANN. §§ 188-F:22 to 188-F:32 (Supp. 1986); New Jersey Police
Training Comm'n, N.J. REV. STAT. §§ 52:17B-67 to 52:17B-73 (1986 & Supp. 1987); New
Mexico Law Enforcement Academy Bd., N.M. STAT. ANN. §§ 29-7-1 to 29-7-12 (1983); New
York Mun. Police Training Council, N.Y. EXEC. LAW §§ 839-845 (McKinney 1982); North
Carolina Criminal Justice Educ. and Training Standards Comm'n, N.C. GEN. STAT. §§ 17C-l
to 17C-12 (1983); North Dakota Criminal Justice Training and Statistics Div., N.D. CENT.
CODE §§ 12-62-01 to 12-62-10 (1985); Ohio Peace Officer Training Council, OHIO REV. CODE
ANN. §§ 109.71-109.80 (Anderson 1984 & Supp. 1986); Oklahoma Council on Law Enforcement and Training, OKLA. STAT. tit. 70, § 3311 (Supp. 1987); Oregon Bd. on Police Standards
and Training, OR. REV. STAT. §§ 181.610-181.700 (1985); Pennsylvania Mun. Police Officers'
Educ. and Training Program, 53 PA. CONS. STAT. §§ 740-750 (Supp. 1987); Rhode Island
Comm'n on Standards and Training, R.I. GEN. LAWS §§ 42-28.2-1 to 42-28.2-12 (1984);
South Carolina Law Enforcement Training Council, S.C. CODE ANN. §§ 23-23-10 to 23-23-80
(Law. Co-op. 1976 & Supp. 1986); South Dakota Law Enforcement Standards and Training
Comm'n, S.D. CODIFIED LAWS ANN. §§ 23-3-26 to 23-3-55 (1979 & Supp. 1987); Tennessee
Peace Officer Standards and Training Comm'n, TENN. CODE ANN. §§ 38-8-101 to 38-8-111
(1984); Texas Comm'n on Law Enforcement Officers and Standards and Educ., TEX. REV.
CIV. STAT. ANN. art. 4413 (29aa) & art. 4413 (29aa-l to 29aa-3) (Vernon 1976 & Supp. 1987);
Utah Council on Peace Office Standards and Training, UTAH CODE ANN. §§ 67-21 to 67-51

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In deterring fourth amendment violations, decertification has several advantages over traditional forms of police discipline. Revoking an
officers's certification, for example, is a more effective deterrent than
merely terminating his employment with the local police department because the terminated officer may be able to continue in law enforcement
by working for a different department within the state. In addition to its
value as a deterrent, decertification removes the offending officer from
the law enforcement profession, thereby avoiding further abuses. 13
Currently, thiry-seven states provide procedures for decertifying police officers.14 The forms of misconduct that can lead to a loss of certifi(1984); Vermont Criminal Justice Training Council, VT. STAT. ANN. tit. 20, §§ 2351-2364
(Supp. 1986); Virginia Dept. of Criminal Justice Services Bd., VA. CODE ANN. §§ 9-167 to 9183 (1985); Washington State Criminal Justice Training Comm'n, WASH. REV. CODE
§ 43.101.200 (1987); West Virginia Law Enforcement Training Subcomm., W. VA. CODE
§§ 30-29-1 to 30-29-9 (1986); Wisconsin Law Enforcement Standards Bd., WIS. STAT.
§§ 165.85-165.87 (1974 & Supp. 1987); Wyoming Peace Officer Standards and Training
Comm'n, WYO. STAT. §§ 9-1-701 to 9-1-707 (1983).
13. In the absence of decertification, the offending officer is likely to remain in the law
enforcement profession. It is common practice today for an officer to be dismissed by one
department and then be rehired by a different department in the same state. In those states
which have minimum selection standards, an officer who fails to meet those standards cannot
be hired by a new department. See, e.g., MICH. ADMIN. CODE r. 28.4102 (1984). Unless the
state also has decertification, however, the officer can remain with his current employer. For a
listing of states with decertification authority, see infra note 14. In many cases, the new department is willing to hire the dismissed officer because the new department does not incur the
cost of training a new recruit. Further, the officer's salary demands are low since better departments will not hire him. For discussion of the ability of such departments to secure professional liablity insurance, see infra note 124.
14. ALA. CODE § 36-21-45 (1975) and ALA. P.O.S.T. RULE 650 x-6.06 (1983); ALASKA
STAT. § 18.65.240 (1986) and ALASKA ADMIN. CODE tit. 13, § 85.100 (July 1985); ARIZ.
REV. STAT. ANN. § 41-1822 (1985) and ARIZ. COMPo ADMIN. R. & REGS. 13 4 07, 13 408
(1983); ARK. STAT. ANN. § 42-701.1 (Supp. 1985) and Ark. Reg. 101O(2)(a); CAL. PENAL
CODE § 13510.1 (West 1982) and CAL. ADMIN. CODE tit. 11, § 1011 (1983); COLO. REV.
STAT. § 24-1-128.6 (Supp. 1986); CONN. GEN. STAT. ANN. § 7-294d(c) (West 1972 & Supp.
1987); DEL. CODE ANN. tit. I I, § 8404(a)(4) (1974 & Supp. 1986); FLA. STAT. ANN.
§ 943.1395 (West 1985 & Supp. 1987) and FLA. ADMIN. CODE ANN. r. llB 27.005 (1985);
GA. CODE ANN. § 35-8-7(14) (Supp. 1987) and Rules of Ga. p.O.s.T. Council, ch. 464-4-.13
(1987); IDAHO CODE § 19-5109 (Supp. 1986) and IDAHO P.O.S.T. RULES AND REGS. 7,1,2
(1986); IOWA CODE § 80B. I 1.6 (Supp. 1987) and Iowa Law Enforcement Academy Rules
§ 501-6.2 (803) (1987); KAN. STAT. ANN. § 74-5607a (1985) and KAN. ADMIN. REGS. 107-2-1
(1983); LA. REV. STAT. ANN. § 2404 (West 1977) and Louisiana P.O.s.T. Rulesfor Retaining
P.O.s. T. Certification as a Peace Officer (1980); ME. REV. STAT. ANN. tit. 25, § 2803(10)
(Supp. 1986); MD. ANN. CODE art. 41, § 70A(d)(7) (1957 & Supp. 1985); MINN. STAT. ANN.
§ 626.843 (West 1983); MISS. CODE ANN. § 45-6-7 (West 1972); Mo. REV. STAT. § 590.120
(1979) and Mo. CODE REGS. tit. II, 11-75-3.080 (1980); MONT. CODE ANN. § 7-32-303
(1987) and MONT. ADMIN R. 2314.411 (1981); NEB. REV. STAT. § 81.1403.5 (Supp. 1986);
NEV. REV. STAT. § 481.053 (1985); N.H. REV. STAT. ANN. § 188-F:26(IV) (Supp. '1986) and
N.H. CODE ADMIN. R. Pol. 502.01 (1982); N.M. STAT. ANN. § 29-7-6 (1978) and NEW MEXICO LAW ENFORCEMENT ACADEMY RULES AND REGS. rule 12, § A.16 (1980); N.C. GEN.
STAT. § 17C-IO(c) (1983) and N.C. ADMIN. CODE tit. 12, r. 09A.0204 (Jan. 1983); N.D.

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cation vary by state. In some states an officer can be decertified for a
wide range of misconduct, such as conduct "that would tend to disrupt,
diminish, or otherwise jeopardize public trust and fidelity in law enforcement."15 Others approve much more limited grounds for decertification,
requiring for example, fraud or mistake in obtaining the certificate or
conviction of a felony. 16
This Article offers the first in-depth analysis of current decertification procedures. After a general discussion of some of the other methods
used to control and punish police misconduct, the Article examines more
closely the practice of decertification as it has developed in Florida. The
purpose of this empirical review is to enable better predictions regarding
decertification's efficacy in safeguarding against fourth amendment violations. Florida, as a leading proponent of decertification,17 is perhaps the
only state with sufficient experience to support such a review.
This Article adopts the folowing typology to describe the different
types of police misconduct observed in Florida. First, "private misconduct" refers to action by an officer not acting under color of authority. IS
Second, "departmental misconduct" refers to misconduct by an officer
acting in his official capacity but not involving private citizens. 19 Finally,
"public, official misconduct" refers to the mistreatment of private citizens by an officer acting under color of authority.
This last category, "public, official misconduct", encompasses three
types of misbehavior: (1) unconstitutional police conduct that yields evidence of a crime (currently inadmissable under the exclusionary rule);
CENT. CODE § 12-62-04 (1985) and N.D. ADMIN. CODE § 10-06-02-08 (1983); OKLA. STAT.
tit. 70, § 3311(K) (Supp. 1987); OR. REV. STAT. § 181.662 (1985) and OR. ADMIN. R. 259-10060(20) (1983); 53 PA. CONS. STAT. § 745 (Supp. 1987) and 37 PA. CODE § 201.17 (1981);
S.D. CODIFIED LAWS ANN. § 23-3-35 (1979) and S.D. ADMIN. R. 2:01:02:07 (1982); TENN.
CODE ANN. § 38-8-107 (1982 & Supp. 1986) and TENN. COMPo R. & REGS. tit. 38, ch. 8 11102-04 (1983); TEX. REV. CIV. STAT. ANN. art. 4413 (29aa-l) (Vernon Supp. 1987) and TEX.
ADMIN. CODE tit. 211, § 83 (1983); UTAH CODE ANN. § 67-15-10.5 (1986 & Supp. 1987); VT.
STAT. ANN. tit. 20, §§ 2355(a)(11), (12) (Supp. 1987); W. VA. CODE § 30-29-6 (1986); WIS.
STAT. § 165.85(3)(cm) (1974 & Supp. 1987); WYo. STAT. § 9-1-703 (1987) and WYo. P.O.S.T.
RULES § 204 (1983). For a description of decertification of law enforcement officers in the
states, see Puro & Goldman, Police Decertification: A Remedy for Police Misconduct?, forthcoming in 5 POLICE & LAW ENFORCEMENT ch. 8 (Kennedy & Homant eds. 1988).
15. UTAH CODE ANN. § 67-15-1O.5(1)(e) (1986 & Supp. 1987).
16. CONN. GEN. STAT. ANN. § 7-294d(20)(c) (West 1983 & Supp. 1987).
17. In our survey of the states with decertification authority since 1980, twelve out of
twenty-one responding averaged less than five decertifications in the years 1980 through 1984.
Puro & Goldman, supra note 14. Florida, during those years, decertified a total of 112 officers.
See infra notes 132-133 and accompanying text.
18. For example, off-duty misconduct such as burglary or drug possession.
19. For example, violations of departmental rules on use of firearms and vehicles or filing
false reports.

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(2) unconstitutional police conduct that does not yield any criminal evidence and may expose the officer to a federal civil suit or criminal prosecution for violation of the citizen's civil rights;20 and (3) misconduct not
recognized under the Constitution, such as bribery or negligent deprivation of propertyY
Recent Supreme Court decisions can be read to require merely that
alternative remedies exist before the exclusionary rule can be modified or
eliminated, regardless of whether the existing remedies are effective.
Under such a reading, decertification remedies like Florida's could justify
cutting back or abolishing the exclusionary rule in fourth amendment
cases. On the basis of the Florida experience, however, this Article concludes that decertification has not been applied directly to redress fourth
amendment violations yielding evidence of a crime, and thus is not available as an effective alternative to the exclusionary rule. Until decertification proves an effective remedy for fourth amendment violations, it
should not be used by the Court as justification for further modifications
of the rule.

I. Decertification versus Traditional Methods of Controlling
Police Misconduct
Before a state will adopt a decertification program, it will want to
contrast decertification with the other methods for controlling police
misconduct. In addition to the exclusionary rule, there are three traditional mechanisms for redressing police misconduct: civil damage suits
against the offending officer, his department or municipality under section 1983 of the Civil Rights Acts;22 criminal prosecutions;23 and com20. See il/fra notes 23, 68-76 and accompanying text.
21. See il/fra note 130 and accompanying text.
22. 42 U.S.C. § 1983 (1982). The statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
23. 18 U.S.C. § 242 (1982). The statute provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of
any rights, privileges, or immunities secured or protected by the Constitution or laws
of the United States, or to different punishments, pains or penalties, on account of
such inhabitant being an alien, or by reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not
more than one year, or both; and if death results shall be subject to imprisonment for
any term of years or for life.

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plaint procedures of local police departments.24 This section addresses
two questions: first, does decertification offer something which the other
remedies do not offer? Second, does decertification avoid the weaknesses
inherent in the other methods?
A. The Exclusionary Rule

The exclusionary rule dictates that evidence obtained in violation of
the rights guaranteed by the Constitution must be excluded at a defendant's criminal triaP5 Although the exclusionary rule most commonly
applies to violations of the Fourth Amendment,26 it also applies to evidence obtained in violation of other constitutional rights. 27
In 1974, a majority of the Court acted to limit the exclusionary rule
in fourth amendment cases. 28 Several later cases continued to weaken
the rule,29 but no significant curtailment in its application occurred until
1984. In two decisions that year, United States v. Leon 30 and Massachusetts v. Sheppard,3! the Court refused to apply the exclusionary rule when
the police relied in good faith on search warrants issued in violation of
the Fourth Amendment. 32 In INS v. Lopez-Mendoza,33 the Court further
24. Except in rare circumstances, as in Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966)
(police department enjoined from conducting illegal searches of private homes), federal injunctive relief to restructure department policies is unavailable. Rizzo v. Goode, 423 U.S. 362
(1976); Los Angeles v. Lyons, 461 U.S. 95 (1983).
25. Occasionally, the rule has been applied in non-criminal cases. See, e.g., One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (holding automobile forfeiture was
quasi-criminal in nature and thus exclusionary rule applied).
26. See Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule used for fourth amendment
violation).
27. Miranda v. Arizona, 384 U.S. 436 (1966) (exclusionary rule used for violations of the
fifth amendment privilege against self-incrimination); Massiah v. United States, 377 U.S. 201
(1964) (exclusionary rule used for violation of the sixth amendment right to the assistance of
counsel); Rochin v. California, 342 U.S. 165 (1954) (conviction overturned on ground that
evidence obtained in violation of fourteenth amendment due process had been used at trial).
For a discussion of the different purposes of the rule depending on the constitutional right at
issue, see supra note 2.
28. United States v. Calandra, 414 U.S. 338 (1974).
29. United States v. Havens, 446 U.S. 620 (1980); Michigan v. DeFiIlipo, 443 U.S. 31
(1979); Stone v. Powell, 428 U.S. 465 (1976); United States v. Janis, 428 U.S. 433 (1976).
30. 468 U.S. 897, reh'g denied, 468 U.S. 1250 (1984).
31. 468 U.S. 981 (1984). Sheppard was decided as a companion case to Leon.
32. In Leon, the lower court had found the warrant was not supported by probable cause.
The Supreme Court did not address the question of whether there was probable cause but
instead held that the good faith exception should apply regardless of whether there was a
fourth amendment violation. 468 U.S. at 922-23. In Sheppard, the warrant improperly described the evidence to be seized, but the Court upheld the search under Leol!. 468 U.S. at
988.
In Illinois v. Krull, 107 S. Ct. 1160 (1987), the Court extended the good faith exception to
reliance by law enforcement officers on the constitutionality of statutes. in Krull, the state

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narrowed the scope of the exclusionary rule by refusing to apply the rule
even to intentional violations of the Fourth Amendment. In Lopez-Mendoza, the illegally obtained evidence was to be used in civil deportation
proceedings rather than in criminal proceedings. 34
One factor distinguishing these recent cases from previous exclusionary rule cases such as Mapp v. Ohio 35 is that the Court no longer
requires that there be effective alternative remedies for redressing fourth
amendment violations before illegally obtained evidence can be admitted. 36 The Court has limited recent discussion of alternatives to noting
the availability, but not the effectiveness, of remedies for fourth amendment violations. For example, the Court in Leon noted that a magistrate
who approved warrant applications when probable cause was clearly absent could be disciplined or removed from office. 37 Although the Court
legislature had unconstitutionally authorized warrantless searches. The Supreme Court refused to apply the exclusionary rule, stating that the rule would apply only if the statute in
question was "clearly unconstitutional." Id. at 1167.
33. 468 U.S. 1032 (1984). In Lopez-Mendoza, a Mexican citizen alleged that he was illegally arrested by an INS agent and that his admission of illegal entry was a fruit of the illegal
arrest. The Supreme Court held that the court need not exclude the evidence at his deportation hearing. Id. at 1051.
34. Id. at 1035-36.
35. 367 U.S. 643 (1961). See infra note 36 for a discussion of the Mapp case.
36. Justice Murphy's dissenting opinion in Wo/fv. Colorado, 388 U.S. 25 (1949), was one
of the earliest indications that individual members of the Court were skeptical of the effectiveness of alternatives to the exclusionary rule. In Wolf, the Court held that fourteenth amendment due process does not require the exclusion of evidence in a state criminal trial for
conduct that would have violated the Fourth Amendment if committed by federal officers. Id.
at 33. Murphy examined the alternatives to the exclusionary rule and concluded that "[t]here
is but one alternative to the rule of exclusion. That is no sanction at all." Id. at 41 (Murphy,
J., dissenting).
In Mapp v. Ohio, the Court overruled Wolf, noting that "[t]he experience of California
that such other remedies have been worthless and futile is buttressed by the experience of other
States." Mapp, 367 U.S. at 652. The Mapp Court held that the exclusionary rule applied to
the states by incorporation of the fourth amendment's privacy guaranty through the Due Process Clause of the Fourteenth Amendment. Id. at 655.
37. Leon, 468 U.S. at 917 n.18. The Court cited 28 U.S.C. § 631(i) (1982), which provides
that magistrates can be removed for "incompetency, misconduct, neglect of duty, or physical
or mental disability." The Court went on to state that "magistrates are subject to the direct
supervision of district courts.... If a magistrate serves as a 'rubber stamp' for the police or is
unable to exercise mature jUdgment, closer supervision or removal provides a more effective
remedy than the exclusionary rule." 468 U.S. at 917 n.18. In Massachusetts v. Sheppard, 468
U.S. 981 (1984), the companion case to Leol/, there was no similar observation that judges who
issue such warrants are subject to discipline. The presence of an alternative remedy therefore
may not be a factor in the Court"s decision to cut back on the exclusionary rule.
Compare Stringer v. State, 491 So.2d 837, 849 (Miss. 1986) (Robertson, J., concurring)
("Considering the realities of the warrant process, we perceive no vehicle for protecting these
rights of our citizens and assuring that issuing magistrates take seriously their responsibilities
other than continued enforcement of this state's exclusionary rule." (emphasis in original».

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cited this remedy as an alternative to the exclusionary rule, it did not
indicate that any magistrates had been so disciplined. In Lopez-Mendoza, the majority noted that the INS had a procedure for disciplining
agents who violated the Fourth Amendment. 38 The Court stated that
the presence of the procedure was "perhaps [the] most important" factor
in reducing "the likely deterrent value of the exclusionary rule" in a civil
deportation case. 39 Unlike Leon, where there was no indication that
magistrates had ever been disciplined under the alternative remedies,
INS agents had in fact been disciplined for misconduct toward aliens.
The dissent was quick to note, however, that of the twenty agents who
were disciplined for misconduct towards aliens, there was no showing
that any were disciplined for fourth amendment violations. 40
Opponents of the exclusionary rule claim that it does not deter police misconduct. 41 Even when they are aware a transgression has occurred, police departments normally do not punish the offending
officer.42 Furthermore, the passage of time between the violation and the
exclusion of evidence at trial, not to mention the years it may take before
the exclusion is upheld on appeal, diminishes the impact of the rule on
police conduct. Opponents also claim that the party most harmed by application of the rule is the prosecutor and, ultimately, society, should the
defendant be set free as a result of the court's exclusion of incriminating
evidence. 43 Another common complaint is that the exclusionary rule "is
38. Lopez-Mendoza, 468 U.S. at 1044. Essentially, the INS regulations restricted stop,
interrogation, and arrest practices. Reasonable suspicion of illegal alienage was required for
detention, and strong evidence tantamount to an admission of illegal alienage was required
before arrest. Immigration officers received ongoing instruction on fourth amendment law and
the INS had a procedure for investigating and punishing officers who violated the Fourth
Amendment. [d. at 1044-45.
39. [d. at 1044-45. Lopez-Mendoza was a civil case and thus its analysis may not be directly applicable to criminal proceedings because the exclusionary rule is rarely applied in civil
suits. See supra note 25.
40. 468 U.S. at 1054 n.2 (White, J., dissenting). Since the majority made no mention of
the fact that INS officers actually were disciplined, it may be that the mere existence of the
remedy alone, as in Leon, rather than its use, is all that is needed to justify modifying or
abandoning the exclusionary rule.
41. For contrasting views on the empirical evidence of deterrence, see authorities discussed in Project, Suing the Police in Federal Court, 88 YALE L.J. 781 (197CJ). The authors of
the Project conducted field research on § 1983 damage actions filed in federal court against
police in Connecticut between 1970 and 1977. They sought to determine if juries were biased
against victims of police misconduct and to analyze the effect, if any, of pl..lintiffs' verdicts on
police departments and officers. [d. at 782-83.
42. See infra notes 77-80 and accompanying text.
43. On the costs of the exclusionary rule, compare Justice White's majority opinion in
Leon, 468 U.S. at 907 n.6 (analyzing statistics regarding the effects of the e:-.c1usionary rule on
the disposition of felony arrests and concluding the rule could not "pay its way" in situations
similar to Leon) with Justice Brennan's dissent, id. at 950 n.11 (Brennan, J .• dissenting) (ana-

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powerless to deter invasions of constitutionally guaranteed rights where
the police either have no interest in prosecuting or are willing to forego
successful prosecution in the interest of serving some other goal."44
Finally, federal court enforcement of the exclusionary rule upon the
states raises problems of federalism. Dissenting in Mapp, Justice Harlan
criticized the imposition of the exclusionary rule on the states:
The preservation of a proper balance between state and federal
responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster
among the States in this respect. . .. In my view this Court should
forbear from fettering the States with an adamant rule which may
embarrass them in coping with their own peculiar problems in
criminal law enforcement.45
Decertification partially addresses these problems. For instance, the
exclusionary rule has an indirect, if any, effect upon a police officer's
ability to pursue his chosen occupation. Decertification operates directly
on the officer in the form of permanent loss of his certificate to work in
law enforcement in that state. In contrast to the exclusionary rule,
decertification is potentially broader in scope. Decertification applies to
any misconduct specified in the decertification statute or rule, and applies
whether or not the misconduct results in finding evidence. Decertification, therefore, can be a more powerful deterrent of police misconduct. 46
In addition, since self-regulating professional boards at the state level administer decertification,47 decertification does not raise the kinds offederalism problems presented by Supreme Court enforcement of the
exclusionary rule upon the states. Moreover, unlike the exclusionary"
rule, decertification does not frustrate the prosecution of the criminal defendant whose rights the officer violated.
Of course, the exclusionary rule and decertification can complement
each other. An officer's illegal search or questioning could result in exclusion of the evidence in a criminal case and also could constitute a
lyzing statistics regarding the effects of the exclusionary rule on the disposition of felony arrests and concluding that "the Court's past assessment of the rule's costs has generally been
exaggerated").
44. Terry v. Ohio, 392 U.S. 1, 14 (1968). Among the examples cited by the Court of other
goals the police might want to pursue is a dragnet search of teenage gang members for weapons. [d. at 13 n.9.
45. Mapp v. Ohio, 367 U.S. 643, 680-81 (1961) (Harian, J., dissenting).
46. An officer who is decertified cannot practice his profession in the decertifying state
unless the agency restores his certificate. If there is a substantial risk of decertification for
specified misconduct, it is fair to assume that an officer will not engage in that conduct. Observing decertification of a colleague should heighten officers' awareness of the process and also
should deter those officers from committing decertifiable misconduct.
47. See supra note 12.

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decertifiable offense. Theoretically, either remedy could reach both intentional and unintentional police misconduct. The exclusionary rule applies to any fourth amendment violation, intentional or unintentional,
unless the violation was based on an officer's good faith belief in the constitutionality of an invalid search warrant or statute. 48 Similarly, some
states provide for decertification of even unintentional misconduct, such
as "conduct constituting ... incompetence.,,49
B. Damage Actions
Scholars have long disputed the effectiveness of damage actions50
brought by victims of police misconduct as a means of deterring such
behavior. 51 Some of the reasons commonly cited for this ineffectiveness
are the lengthy delay between the violation and the resultant trial;52 litigation costs;53 problems of proof, especially when the misconduct oc48. See supra notes 30-32 and accompanying text
49. FLA. STAT. ANN. § 943.145(3) (West 1981). In 1984, Florida enacted new decertification standards which repealed this provision. FLA. STAT. ANN. § 943.1345 (West 1985 &
Supp. 1987). For a discussion of the reasons for the repeal, see infra note 131. For an extant
provision concerning unintentional misconduct, see UTAH CODE ANN. § 67-15-10.5(1)(e)
(1984), which provides for decertification when the officer has engaged in conduct "that would
tend to disrupt, diminish or otherwise jeopardize public trust and fidelity with regard to law
enforcement."
50. Actions for which police are liable in tort under state law include "false arrest and
false imprisonment, malicious prosecution, excessive force, abuse of process, and negligence."
del Carmen, An Overview of Civil and Criminal Liabilities ofPolice Officers and Departments, 9
AM. J. CRIM. LAW 33, 42 (1981) (citations omitted). For an analysis of the difficulties encountered by plaintiffs in such suits, with suggestions for remedying the weaknesses, see Foote, Tort
Remedies for Police Violations ofIndividual Rights, 39 MINN. L. REV. 493 (1955). Commentators have noted plaintiffs' preference for filing in federal court. See Masciotti, Police Officers'
Civil Liability for Misconduct, 6 POL. L.Q. 42, 47 (1977); Project, supra note 41, at 782 n.4.
51. Littlejohn, Civil Liability and the Police Officer: The Need for New Deterrellts to Police
Misconduct, 58 J. URB. L. 365, 367 n.4 (1981) (collecting authorities). Compare T. Eisenberg
& S. Schwab, The Reality of Constitutional Tort Litigation (Sept. 17, 1986) (unpublished manuscript) (copy available at the offices of the Hastings Constitutional Law Quarterly), a study of
constitutional tort litigation in the Central District of California. Plaintiffs were successful in
suits against the police during the three time periods studied in over half the cases in the
sample, although included in the definition of "successful" cases were such unclear dispositions as voluntary dismissals by plaintiff. Id. at 67, 83. The authors followed up to determine
from the attorneys of record whether, in fact, these unclear dispositions were favorable to
plaintiffs. Of those responding, 85% indicated such dispositions were favorable. Id. at 70.
The success rate in police suits was still lower than the average success rate of the nonconstitutional tort plaintiff, but higher than all other constitutional tort categories e:\cept employment.
[d. at 68, 83.
52. Littlejohn, supra note 51, at 369.
53. AMERICAN LAW INSTITUTE, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE
402, Commentary on § 150.3 (1975) [hereinafter MODEL CODE]; Davis, An Approach to Legal
Control of the Police, 52 TEX. L. REV. 703, 718 (1974); Littlejohn, supra note 51, at 369.

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curred within the police station or patrol car;54 jury bias in favor of the
officer on questions involving credibility of witnesses;55 risk of a defamation counterclaim by the officer;56 and the possibility of malicious prosecution actions by either the officer or the city. 57 Furthermore, police have
a qualified immunity that absolves an officer of liability if he acted in the
good faith belief that his actions were constitutional. 58 Even when the
54. MODEL CODE, supra note 53, at 402 (discussing insurmountable problems of proof);
Littlejohn, supra note 51, at 369 (regarding conflicting testimony about disputed facts); Note,
Rethinking Federal Injunctive ReliefAgainst Police Abuse: Picking Up the Pieces After Rizzo v.
Goode, 7 RUT.-CAM. L.J. 530, 548 (1976) (chief problem in police litigation seeking injunctive
relief is evidence gathering).
55. Project, supra note 41, at 783. Among the reasons found for jury bias are the different
racial, class, lifestyle, and age characteristics of plaintiffs and jurors, and pro-police attitudes of
jurors. Id. at 788-802. Other causes of bias, according to the study, are the historic scarcity of
black jurors and the presence of repeat jurors. Id. at 806-09. Juries are also reluctant to award
damages when the plaintiff is a convicted criminal. MODEL CODE, supra note 53, at 402.
56. See, e.g., Meiners v. Moriarty, 563 F.2d 343 (7th Cir. 1977) (plaintiff sued federal
agents for violating his fourth and fifth amendment rights in searching his house and arresting
him; agents counterclaimed for defamation); Seymour v. A.S. Abell Co., 557 F. Supp. 951 (D.
Md. 1983) (defamation suit brought by police officer against newspaper for reporting internal
police investigation and administrative charges brought against the officer).
The courts have held that police officers are public officials under New York Times v.
SuIlivan, 376 U.S. 254, 283 (1964). Thus, officers must prove that the defamation was made
with actual malice. See Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (collection of precedent). Cj. Berkey v. Delia, 287 Md. 302, 304, 413 A.2d 170, 180 (1980) (leaving question
open). The court in Cassidy v. A.B.C., 60 Ill. App. 3d 831, 839, 377 N.E.2d 126, 131 (1977),
applied the actual malice standard in an invasion of privacy suit brought by a police officer.
57. But see City of Long Beach v. Bozek, 31 Cal. 3d 527,645 P.2d 137, 183 Cal. Rptr. 86
(1982), in which the California Supreme Court held that a city could not maintain a malicious
prosecution action against an individual who had unsuccessfully sued the city and two police
officers for police misconduct. The court reasoned that the individual's suit was an exercise of
the constitutional right to petition for redress of grievances and that allowing suit by the city
would "provide ... a sharp tool for retaliation against those who pursue legal actions against
[cities]. Indeed, it is not unlikely that even good faith claimants would forego suit in order to
avoid the possibility of having to defend against a subsequent malicious prosecution action
...." Id. at 535-36, 645 P.2d at 141, 183 Cal. Rptr. at 91. The court noted that the major
purpose of the city's action-to recover attorney's fees expended in defending the first suitalready has been recognized by two California statutes which allow recovery of attorney's fees
in the same action when the suit is frivolous, CAL. CIV. PROC. CODE § 128.5 (West 1982), or
when a suit against a police officer or the city is brought in bad faith and without probable
cause, CAL. CIV. PROC. CODE § 1021.7 (West Supp. 1987).
The court left open the question of whether the officers were similarly barred from bringing a malicious prosecution action. It noted two possible differences between a city and its
officers. First, officers could be harmed by false suits due to the emotional distress of defending
the suit and the resultant damage to their reputations; second, the court felt the risk of retaliatory motives might not be as great when officers brought suit. Bozek, 31 Cal. 3d at 538 n.9,
645 P.2d at 143 n.9, 183 Cal. Rptr. at 92 n.9 (1982).
58. Pierson v. Ray, 386 U.S. 547 (1967). Although the authors of the Project did not find
that the good faith defense played a significant role in the pro-police verdicts of the cases in
their sample, they recommend abolishing the defense since the officer is already the beneficiary
of jury bias in his favor. Project, supra note 41, at 804, 815-16.

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victim of the misconduct prevails at trial, the action often provides little
compensation59 and has little deterrent effect on either the officers60 or
their departments. 61
Decertification differs from damage actions in several respects. For
example, expense is not a direct obstacle to prosecuting the misconduct
because the state governmental agency bears the costs of decertification
actions. Investigators employed by the local agency62 or the state63 investigate the charges. 64 In decertification procedings, an officer has no
right to a jury trial. Finally, the victim who reports the officer's misconduct faces no possibility of a counterclaim because the state is the officer's adversary.65
Decertification does not compensate the victim for the officer's misconduct; rather, its sole purpose is to remove the officer from law enforcement work. In some jurisdictions, however, victims may use
findings by the administrative hearing officer as proof of the underlying
misconduct in a later damage suit. 66 If the victim can use these findings,
he overcomes the major problem of proof facing plaintiffs in police
59. Littlejohn, supra note 51, at 369; Project, supra note 41, at 814. See also MODEL
CODE, supra note 53, at 402 n.33. Where municipal immunity is removed. as in Michigan,
actions result in higher awards. Littlejohn, supra note 51, at 409.
60. MODEL CODE, supra note 53, at 402; Project, supra note 41, at 814. The authors of
the Project concluded that officers were not deterred because they were indemnified from any
judgment or settlement and provided free counsel. Project, supra note 41, at 810-11. Professor
Littlejohn reached the same conclusion as to suits in Detroit. Littlejohn, supra note 51, at 42830. See also T. Eisenberg & S. Schwab, supra note 51, at 78-79 ("We found no case in which it
was clear from the court records that an individual official had borne the cost of an adverse
constitutional tort judgment.").
61. The Project found that departments did not discipline officers who were successfully
sued, nor did municipalities pressure the departments to discipline the officers. Project, supra
note 41, at 810-14.
62. See, e.g., FLA. ADMIN. CODE ANN. r. lIB 27.003(1) (1985).
63. ALA. P.O.S.T. RULE 650-X-5-.02 (1983); CAL. P.O.S.T. ADMIN. MANUAL, COMM'N
PROCEDURE F2, § 2-4 (1980); Rules of Ga. p.O.S.T. Council, ch. 464-4-.11 (1987); ME. REV.
STAT. ANN. tit. 25, § 2806 (1974 & Supp. 1986); N.C. ADMIN. CODE tit. 12, r. 09A-0201 (Jan.
1983); WYo. P.O.S.T. RULES § 201(a) (1983).
64. In Minnesota, a P.O.S.T. "complaint investigation committee" evaluates the sufficiency of the local department's initial investigation and has the power to "determine the appropriate agency to investigate the matter." 4 MINN. R. 13.037(D) (1982) and MINN. STAT.
ANN. § 214.10(5) (West Supp. 1987). The P.O.S.T. executive director may order a designated
agency to investigate and report within 30 days. 4 MINN. R. 13.037(E) (1982). Notwithstanding the above procedures, the P.O.S.T. attorney is also empowered to evaluate the facts alleged
in any complaint. MINN. STAT. ANN. § 214.10(2) (West Supp. 1987).
65. Whether an officer may bring a claim for defamation against the victim is a matter of
state law and turns on whether the victim's report to a governmental agency empowered to
investigate law enforcement officers' activities is privileged. See infra note 93 for a discussion of
liability for false reporting in police complaint proceedings.
66. See infra note 147 and accompanying text.

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suits. 67 Estoppel on the misconduct claim also forecloses any possibility
of a retaliatory defamation or malicious prosecution action against the
victim.
C.

Criminal Prosecution of Police Officers

Local prosecutors are authorized to undertake criminal prosecutions
of civil rights violations under 18 U.S.C. section 242:68 In practice, however, criminal prosecution of police officers for public, official misconduct
is rare and largely ineffectual. 69 Prosecutors are reluctant to proceed
against police officers, on whom they depend for making arrests and conducting investigations. 70 Furthermore, in prosecutions that proceed to
trial, juries often sympathize with the officer, particularly when the prosecution is for an offense involving the denial of rights to criminal suspects. 71 These difficulties have led commentators to recommend that
local prosecutors not prosecute police, and to suggest instead the establishment of a "special statewide police prosecutor whose sole function is
to evaluate and, where appropriate, prosecute police cases."72
As with all criminal actions, the prosecutor carries the burden of
proving beyond a reasonable doubt the case against the officer. Moreover, under 18 U.S.C. section 242, the prosecution must prove the officer
had the specific intent to deny the victim his constitutional rights. 73
Decertification, on the other hand, is an administrative process with
67. See, e.g., Project, supra note 41, at 801-02 (discussion of bias in favor of police). If a
court were to hold that the municipality or department was bound by findings of the decertification fact finder in a subsequent civil suit against the officer, municipality or department,
cities and departments would hesitate to cooperate in the decertification process. A similar
argument was made by amicus American Civil Liberties Union (ACLU) of Northern California in Peterson v. City of Long Beach, 24 Cal. 3d 238, 594 P.2d 477, 155 Cal. Rptr. 360 (1979).
In that case, the California Supreme Court held that a local police department regulation on
use of deadly force, which was more restrictive than the relevant state law, provided the standard of care by which the officer was to be judged in a wrongful death action brought by
parents of the decedent. The ACLU argued, unsuccessfully, that adopting the regulations as
the standard of care would "simply deter police departments from making rules of conduct at
all because of their fear of imposing unneccessary civil liability." Id. at 249, 594 P.2d at 483,
155 Cal. Rptr. at 366 (Richardson, J., dissenting).
68. See supra note 23 and accompanying text.
69. See authorities collected in Littlejohn, supra note 51, at 367 n.4; Project, supra note
41, at 782 n.4.
70. Schwartz, Complaillts Against the Police: Evidence of the Community Rights Division
of the Philadelphia District Attorney's Office, 118 U. PA. L. REV. 1023, 1024-25 (1970).
71. See Berger, Law Enforcement Colltrol: Checks and Balancesfor the Police System, 4
CONN. L. REV. 467, 478 (1971).
72. Emery, Letter to the Editor, N.Y. Times, Oct. 16, 1984, at A30, col. 4 (the author of
the letter is an attorney for the ACLU in New York).
73. Screws v. United States, 325 U.S. 91 (1944).

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a less onerous burden of proof74 and does not depend on a citizen's willingness to initiate and pursue a complaint. 75 As in license revocation proceedings in other professions, the decertification commission itself is the
moving party, and a state official, such as a member of the state attorney
general's office, rather than the local prosecutor, presents the case on
behalf of the state. 76
D. Discipline by Local Departments
Traditionally, local police departments have overseen police discipline. 77 Experience indicates, however, that internal discipline by police
departments is often more severe for minor departmental infractions78
and for private criminal misconducC9 than for abuse of citizens' rights. 80
Demands for civilian review of complaints arose in the 1950s and 1960s
after allegations that officers were not being disciplined by local departments for public, official misconduct. 81 Efforts to establish civilian re74. The standards of proof in business and professional decertification procedures vary
among the states, from preponderance of evidence, see, e.g., S.D. ADMIN. R. 2:01:04:02.01
(1982), to clear and convincing evidence, Walker v. State Bd. of Optometry, 322 So.2d 612,
613 (Fla. Dist. Ct. App. 1975). The higher standard for license revocation has alternatively
been stated as requiring "substantial competent evidence," a term which "takes on vigorous
implications ... that are not so clearly present on other occasions for agency action" under
Florida's Administrative Hearing Act. Bowling v. Department of Ins., 394 So.2d 165, 171
(Fla. Dist. Ct. App. 1981).
75. See infra notes 89-90 for a discussion of the problems inherent in citizen's complaints.
76. See, e.g., TEX. REV. CIV. STAT. ANN. art. 4413 (Vernon 1976 & Supp. 1987). In
Texas, the Commission's staff counsel presents the case. Some states, however, allow "any
person" to initiate the decertification process by sending notice to the P.O.S.T. Commission.
S.D. ADMIN. R. 2:01:04:03.01 (1982). See also ALA. P.O.S.T. RULE 650 X-S.Ol (1983).
77. Littlejohn, The Civilian Police Commission: A Deterrent of Police Misconduct, 59 J.
URB. L. 5, 36 (1981) [hereinafter Littlejohn, Civilian Police Comm'n]. See REPORT By THE
GOVERNOR'S COMM'N ON THE Los ANGELES RIOTS, Violence in the City-An End or a Beginning? (1965), for a discussion of the activities of the Los Angeles Board of Police Commissioners. See generally AMERICAN CIVIL LIBERTIES UNION, POLICE POWER AND CITIZENS'
RIGHTS-THE CASE FOR AN INDEPENDENT POLICE REVIEW BOARD (1966).
78. Project, supra note 41, at 782 n.4 (collection of authority); Note, Grievance Response
Mechanisms for Police Misconduct, 55 VA. L. REV. 909, 938 (1969).
79. Littlejohn, supra note 51, at 430 n.429; Littlejohn, Civilian Police Comm'n, supra note
77, at 24 n.132.
80. The one exception is for corrupt practices, that is "the exerting or withholding of
police action in exchange for money or other reward." See Goldstein, Administrative Problems
in Controlling the Exercise ofPolice Authority, 58 J. CRIM. L., CRIMINOLOGY & POL. SCI. 160,
162 n.4 (1967).
81. Littlejohn, Civilian Police Comm'n, supra note 77, at 8. For a comparison of civilian
review and internal review in Philadelphia, see Hudson, Organizational Aspects ofInternal and
External Review of the Police, 63 J. CRIM. L., CRIMINOLOGY & POL. SCI. 427 (1972). Ben
Holman, former Director of the Community Relations Service of the Department of Justice,
argues that a "clear and firm" path for citizen complaints against police misconduct is necessary. "The feeling is pervasive in minority communities that, regardless of circumstances, the

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view, however, were frustrated by police associations which claimed that
no other municipal officials were required to answer to such an independent board. 82
Furthermore, once established, civilian review boards were often unable to monitor adequately or to punish police misconduct. These boards
failed for three major reasons. First, the boards often depended on the
local police department to conduct the investigations, and victims of police misconduct suspected the department's sincerity in investigating its
own employees. 83 Second, police viewed the civilian review board as a
hostile, external force. 84 Police resented the fact that among municipal
employees, they alone were governed by a special citizens' board. 85 This
resentment led to massive police resistance to the civilian review. 86 Finally, the boards were typically empowered only to recommend punish:ment to the police chief or commissioner,87 thereby encountering the
problems inherent in internal discipline. 88
Any citizen complaint system depends on the ability89 and willing90
ness of citizens to file and press complaints. Therefore, the system must
protect the complainant from the potential problem of retaliation by the
police always will be exonerated when accusations of misconduct are brought by minority
citizens. This perception that justice will not prevail alone militates against improvement between law enforcers and minorities." 1 U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS: REPORT ON POLICE PRACTICES 2 (1981).
82. See supra note 81; see also S. Halpern, POLICE AsSOCIATION AND DEPARTMENT
LEADERS, THE POLITICS OF COOPERATION (1974).
83. Littlejohn, Civilian Police Comm'n, supra note 77, at 17 n.75; Schwartz, supra note
70, at 1025.
84. Littlejohn, Civilian Police Comm 'n, supra note 77, at 11.
85. Note, supra note 78, at 943; Gelhorn, Police Review Boards: Hoax or Hope?, 9
COLUM. UNIV. F. 1,8-9 (1966).
86. Gelhorn, supra note 85, at 11, 22-23, 59.
87. Littlejohn, Civilian Police Comm'n, supra note 77, at 10. Professor Littlejohn states
that the Detroit civilian police commission addresses these problems by having its own independent investigative unit. Further, the commission establishes policy rather than merely
reviewing disciplinary cases. Finally, the commission has the ultimate power to discipline. Id.
at 45. He predicts that civilian review boards without these characteristics "will surely fail."
Id. at 59.
88. See supra notes 78-81 and accompanying text.
89. Ignorance of the complaint process often prevents citizens from filing complaints.
Goldstein, supra note 80, at 167.
90. [The complainant] must seek out the procedure by which complaints are to be
filed. He must identify himself and provide sufficient information to enable the initiation of an investigation. He must be prepared to assist in the investigation, to identify alleged wrongdoers, and to participate in any formal disciplinary proceeding or
any criminal prosecution which may result. Involvement becomes costly in terms of
time, travel, and days lost from work. A common awareness of the inconvenience
one is caused and the degree to which one is placed in an accusatory position serves
as a major deterrent.
Id. at 168.

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police. 9l Police have sued complainants for defamation 92 or charged
them with filing a false report93 in sufficient numbers to deter citizen
complaints. In the past, police have commonly offered to drop charges
such as resisting arrest in exchange for citizens' dropping their complaints. 94 In certain cases, the police have made arrests solely for the
purpose of obtaining a bargaining chip in the event of a complaint. 95 Finally, citizens who do pursue complaints despite these obstacles are usually disappointed at the light punishment imposed on the officer. 96
Decertification commissions, though generally controlled by law enforcement officials,97 are independent of the local police departments.
This feature helps ensure objectivity and professionalism in disciplining
91. See Niederhoffer, Restraint of the Force: A Recurrent Problem, 1 CONN. L. REV. 288,
296 (1968).
92. Note, Police Defamation Suits Against Citizens Complaining of Police Misconduct, 22
ST. LOUIS U.L.J. 676 (1978); Note, Defamation of a Police Officer in a Citizen Complaint:
Vindicating the Rights of "the Blue" in Arizona, 24 ARIZ. L. REV. 611, 612-13 (1982) (success
rate of police officers suing citizens for filing allegedly false complaints is low).
California courts have given absolute immunity to individuals sued for defamation for
filing a complaint with a local department. Imig v. Ferrar, 70 Cal. App. 3d 48, 57, 138 Cal.
Rptr. 540, 544 (1977). The court in Imig read California's immunity statute. CAL. ClV. CODE
§ 47(2) (West 1982), which gives an absolute privilege for publication made "in any legislative,
judicial, or other official proceeding authorized by law," to include police complaint proceedings. In 1983, California amended § 47 to permit defamation suits by police against individuals who file a complaint with knowledge of its falsity and with "spite, hatred. or ill will." CAL.
CIV. CODE § 47.5 (West 1983). A superior court judge dismissed a suit by police officers
under § 47.5 because it violated a complainant's right to petition the government for redress of
grievances under the First Amendment. Janese v. Letona, No. 815871 (Cal. Super. Ct. Feb.
15, 1984), aff'd on other grounds, Janese v. Letona, No. A027244 (Cal. Ct. App. Mar. 21,
1986).
93. See Note, supra note 78, at 936. A California Court of Appeal, avoiding "more complex constitutional arguments," held that California's false reporting law, C\L. PENAL CODE
§ 148.5 (West 1970), did not include citizen complaints alleging police misconduct. Pena v.
Municipal Court, 96 Cal. App. 3d 77, 83, 157 Cal. Rptr. 584, 587 (1979). "Allowing police
officials to prosecute a citizen for filing a complaint against an officer ... would have the
tendency to 'chill' the willingness of citizens to file complaints, particularly on weak evidence
and when the same entity against which the complaint is made will be investigating the accusations." Id.
94. Note, supra note 78, at 936.
95. Id.
96. Id. at 938; PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND AD~IIN. OF JUSTICE,
TASK FORCE REPORT: THE POLICE 197 (1967). For example, in PhiladelphlJ an officer found
to have committed an aggravated assault and battery would receive a reprimand letter in his or
her official file. In Houston, an officer who received stolen goods or committed larcency would
be suspended for ten days.
97. In three states, the majority of P.O.S.T. commission members are not required to be
law enforcement officials. See ALA. CODE § 36-21-41 (1975) (four out of seven members need
not be law enforcement officials); N.M. STAT. ANN. § 29-7-1 (1978) (six out of seven members); NEV. REV. STAT. § 481.053.2 (1985) (none of the three members are law enforcement
officials). Several other states provide for representation by members of the public.

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police misconduct. It also insulates the commission from the pressures
applied by local police associations.
In contrast to the duties of citizen review boards, review of police
misconduct is but one of the responsibilities of decertification commissions. The commissions' most important responsibility is to establish
standards for the selection and training of officers. The establishment of
standards predates by several years the commissions' decertification authority.98 The police cannot fairly view legislative creation of decertification power as an unfair singling out of police since virtually every other
profession has long been subject to license revocation for misconduct. 99
Decertification commissions are free from other weaknesses inherent
in civilian review boards. In some decertification states, for example, investigation of the alleged misconduct is the responsibility of the state,
usually the state attorney general's office. 100 Even in those jurisdictions
where the local department conducts the initial investigation, failure to
investigate adequately may trigger an independent investigation. 101 In
addition, the state may require that the local department give the commission all records concerning citizen complaint proceedings; some states
have freedom of information acts which preclude public access to information regarding the identity of the officer and witnesses if a complaint is
not sustained. 102 Ultimately, unlike many citizen review boards, the com98. In Florida, for example, training and selection standards were enacted in 1967, 1967
Fla. Laws ch. 67-230, but the first legislative authority for decertification was enacted in 1980.
FLA. STAT. ANN. § 943.145 (West 1980) (repealed in 1984 and replaced by FLA. STAT. ANN.
§ 943.1395 (West Supp. 1987). See infra note 131.).
99. See Brodie v. State Bd. of Medical Examiners, 177 N.J. Super. 523, 427 A.2d 104
(App. Div. 1981) (license revocation of radiologists and chiropractors). For information on
nursing license revocation, see the activities of the Joint Practices Commission of the American Medical Association and American Nurses Association, discussed in V. HALL, STATUTORY REGULATION OF THE SCOPE OF NURSING PRACTICE: A CRITICAL SURVEY (1975).
For a general overview of the regulation of professions, see Paper by Susan Schneider, Administrative Regulation of the Professions: Determinants of Occupational Licensure Policymaking
in Centralized and Decentralized Systems, Midwestern Political Science Convention, Chicago,
III., Apr. 6-8, 1985.
100. See supra note 63.
101. During the second half of the period of our study, Florida's law provided that the
local agency make the initial investigation, FLA. STAT. ANN. § 943.145(4) (West 1980), but if
the investigation was inadequate, the commission could request further inquiry or the Governor could direct an appropriate agency to make further investigation, FLA. STAT. ANN.
§ 943.145(6) (West 1980). Currently, the law provides that the commission shall "cause to be
investigated" any ground for revocation, or may itself investigate. FLA. STAT. ANN.
§ 943.1395 (West Supp. 1987).
102. FLA. STAT. ANN. § 119.07(3) (West 1982); FLA. STAT. ANN. § 112.533(2)(a) (West
Supp. 1982).

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mission itself imposes the sanctions for misconduct. 103

II. Incentives to Adopt Decertification
Thirteen states currently have no decertification authority.104 Police
officers in those states may be fired from one department for serious misconduct, but are in most instances still free to seek employment in other
departments within the state. 105 In some states, however, other provisions of state law, such as civil service regulations 106 or forfeiture of office
statutes,107 bar their reemployment.
It is likely that all states will eventually enact decertification laws 108
and use that authority aggressively.I09 There are two reasons for this prediction: increasing fear of municipal liability for misconduct of police11O
103. In California, a hearing officer submits a "proposed decision" to the commission,
which renders a final decision. CAL. P.O.S.T. ADMIN. MANUAL, COMM'N PROCEDURE F2,
§ 2-6 (1980). See also 4 MINN. R. 13.037(1) (1982) (p.O.S.T. board executive director functions
as a hearing officer); N.M. LAW ENFORCEMENT ACADEMY RULES AND REGS. rule 12, § A.15
(1980) (board may designate a hearing officer).
104. See supra note 14 for a list of states with decertification authority.
105. See supra note 13. One law enforcement official testified that in his experience, 90%
of the officers fired or resigning for misconduct seek employment with another department in a
neighboring municipality within the same state. Authors' notes taken from Hearings Before
the Missouri House Comm. on Government Organization on HB 150, Jefferson City, Mo., Feb.
12, 1986 (Clarence Harmon, Commander, Internal Affairs, St. Louis, Mo. Police Department).
Some states, like Missouri, have regulatory, not statutory, authority to decertify. The lack
of statutory authority may account for the few number of officers decertified-in Missouri,
only three officers since 1980. In Florida, the change from regulatory to statutory authority
increased the number of decertifications. See infra Table III and notes 132-134.
106. See, e.g., MASS. GEN. ANN. LAWS ch. 31,41 (West 1979). The Massachusetts civil
service system extends its coverage to local law enforcement officials and sets forth procedures
and circumstances under which police officers may be disciplined or removed. See also N.Y.
CIV. SERVo LAW § 75 (McKinney 1983).
107. These laws may apply only to elected or appointed officials, not to public employees
such as police officers. See, e.g., Mo. REV. STAT. § 561.021 (1978). Furthermore, these laws
may not be effective without enforcement mechanisms to prevent a fired official from being
rehired later. Occasionally, local prosecutors agree not to prosecute an officer in exchange for
an agreement to stay out of law enforcement for life. See, e.g., County Drug Officer Quits.
Avoids Charges. Westfall Says, St. Louis Post-Dispatch, Mar. 13, 1985, at AI, col. 5.
108. Most of the decertification statutes have been enacted within the last 10 years. Several
states without decertification authority are considering decertificiaton legislation. Missouri
legislators, for example, are trying to pass decertification legislation to replace the existing
regulatory authority. See supra note 105. The House passed legislation in 1987 but the session
ended before the Senate took action. HB 407, HB 492, & HB 649, 84th Leg., 1st Sess. (1987).
A bill has been prefiled in the South Carolina legislature for the 1988 legislative session.
109. Florida, for example, decertified an increasing number of officers each year from 1979
through 1983 (1983 data are inclusive only through October). See Table 1 and discussion infra
notes 130-133 and accompanying text.
110. See infra notes 112-124 and accompanying text.

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and establishment of higher standards of police professionalization. 111
A.

Municipal Liability

In 1978, the United States Supreme Court extended liability for police misconduct to cities and police departments in Monell v. Department
of Social Services. 112 Although an officer who in good faith commits an
unconstitutional act can claim immunity,113 his municipal employer is
not so protected. 114 Thus, it appears that the continued employment of
an officer prone to unconstitutional actions exposes the state or local department to liability.
To recover damages from the city or police department, a plaintiff
must prove that "a policy statement or decision officially adopted and
promulgated"115 by the city or department was the "moving force"116
behind the officer's unconstitutional action. The parameters of this requirement are still unclear. The Court in Oklahoma City v. Tuttle 117 left
open the question of whether a policy not itself unconstitutional would
support a recovery against the city.u s In Brandon v. Holt,119 it was the
practice of the chief of police to ignore citizen complaints against an officer whose misconduct was well known to other officers. The Court remanded without addressing the issue whether this was even a "policy"
under Monell. 120
The threat of municipal liability is likely to spur states to adopt
decertification procedures. 121 Even if d~age awards are relatively low,
111. See infra notes 125-129.
112. 485 U.S. 700 (1978).
113. See supra text accompanying note 58.
114. Owen v. City of Independence, 445 U.S. 622 (1980).
115. Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).
116. Polk County v. Dobson, 454 U.S. 312, 326 (1981).
117. 471 U.S. 808, 824 n.7 (1985) (plurality opinion).
118. The dissent in Tuttle did not distinguish "between policies that are themselves unconstitutional and those that cause constitutional violations." Id. at 833 n.8 (Brennan, J.,
dissenting).
119. 469 U.S. 464 (1985).
120. Id. at 473. The court granted certiorari to decide inter alia, whether inadequate training constitutes a "policy" under Monell. City of Springfield v. Kibbe, 106 S. Ct. 1374 (1986)
(grant of certiorari). The writ was dismissed as improvidently granted, 107 S. Ct. 1114 (1987),
but Justice O'Connor, dissenting for four members of the Court, would hold that there may be
municipal liability under MOl/ell "only where failure to train amounts to a reckless disregard
for or deliberate indifference to the rights of persons within the city's domain." Id. at 1121
(O'Connor, J., dissenting).
121. Although the municipalities, not the states, are liable under § 1983, the state has an
interest in making sure that its cities do not become insolvent. Once a state has adopted decertification, it may be necessary to provide incentives to ensure compliance by local departments
which might resent state intrusion into local affairs. Under Florida's revenue sharing act, the

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attorneys' fees in damage actions can be high. For example, in City of
Riverside v. Rivera, 122 the Court upheld a federal district court's award of
$245,000 in attorneys' fees for a jury verdict of only $33,350. 123 In addition, insurance companies may refuse to insure municipalities, in part,
because they fear exposure to claims arising from police misconduct. 124
To the extent that decertification removes high-risk officers from law enforcement, it makes the municipality a more attractive insurance risk.
B. Professionalization
Law enforcement professionals and a few state legislators have taken
the lead in sponsoring decertification legislation. A survey we conducted
in 1984 revealed that the law enforcement community provided the impetus for the legislation or regulations in seventeen of the thirty-seven
states with decertification authority.125 In most of these states, individual police professionals sought the cooperation of several key state legislators to enact laws and regulations governing police misconduct.
Many chiefs of police welcome state decertification. First, decertification prevents clearly unfit officers from getting hired by so-called "last
chance agencies.,,126 Second, decertification helps chiefs counter pressures from local politicians, police associations, and citizens who might
wish that the misconduct be ignored. 127 The decertification commission
could serve as the "external critic" available to protect and support a
police administrator in his efforts to attain proper goals. 128 Third, like
local government unit must certify its law enforcement officers meet qualifications set by the
commission to receive its share of funds beyond the minimum entitlement. FLA. STAT. ANN.
§ 218.23(1)(d) (West Supp. 1987).
122. 106 S. Ct. 2686, 2698 (1986) (plurality opinion).
123. Id. at 2698.
124. Some professional liability insurance companies now refuse to insure police departments if the responses to the following questions are unsatisfactory: does the department rely
on the fact the officer is decertified? Are there previous judgments against the officer for misconduct or against the department for negligent hiring or retention? Telephone interview with
G. Patrick Gallagher, Director, Institute for Liability Management, Vienna, Virginia, Former
Director, Criminal Justice Standards and Training Division, Florida Department of Law Enforcement (Dec. 11, 1987) (on file at St. Louis University School of Law). A recent study
questions whether insurers' fears are justified. The authors found that less than .02% of Los
Angeles' 1981 revenues were spent on constitutional tort litigation in the same year. T. Eisenberg & S. Schwab, supra note 51, at 76-77.
125. Data on file with authors at St. Louis University School of Law.
126. "Last chance agencies" are police departments that will hire officers regardless of the
officers' prior record of misconduct. These agencies are so designated by informal communications among police officers. See Puro & Goldman. supra note 14.
127. See J. GILSINAN. DOING JUSTICE chs. 2 & 3 (1982). Gilsinan argues that police deny
or hide misconduct because its disclosure leads the public to assume that all police are engaged
in deviant behavior.
'
128. Goldstein, supra note 80, at 171.

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members of most occupations, police strive to be recognized as professionals. Thus, some form of self-regulation to expel unfit members would
increase police professionalism. 129

IV. Decertification and Public, Official Misconduct-The
Florida Example
This section describes Florida's experience with decertification of officers for public, official misconduct. As stated previously, public, official
misconduct, which is the focus of this Article, includes constitutional
violations of individual rights as well as negligent deprivations of liberty
or property which do not implicate constitutional rights. 130 We analyzed
the files of officers decertified by the Florida Criminal Justice Standards
and Training Commission ("Commission") from October 1976 through
October 1983. 131 These files contain detailed descriptions of the conduct
leading to decertification. This information was used to categorize various forms of police misconduct.
Our study found that the Commission took action against 148 peace
officers between October 1976 and October 1983. Through 1980, the
Commission decertified officers by administrative rule. 132 As Table I indicates, the Commission decertified 132 officers, suspended fourteen, and
placed two on probation.
Between October 1976 and July 1980, the Commission decertified or
suspended thirty-four officers, two of whom were suspended for public,
official misconduct. Between July 1980 and October 1983, the Commis129. Initial certification alone is insufficient. See MINN. STAT. ANN. § 626.845(d) (West
Supp. 1987), which requires a licensing examination after completion of training. Minnesota
also requires periodic continuing education to maintain a license. MINN. STAT. ANN. § 214.12
(West Supp. 1987); 4 MINN. R. § 13.029 (1982).
130. For a discussion of the different typologies used for this Article, see supra notes 18-21
and accompanying text. In Daniels v. Williams, 106 S. Ct. 663 (1986), and Davidson v. Cannon, 106 S. Ct. 668 (1986), the Court held that negligent acts by state officials causing unintended loss or injury to prison inmates did not constitute a violation of due process under the
Fourteenth Amendment. Justice Blackmun, dissenting in Davidson, noted that in some circumstances negligence may violate other constitutional provisions, such as the Fourth Amendment. Id. at 674 n.6 (Blackmun, J., dissenting).
131. In 1984, the Florida legislature reduced the Commission's decertification authority by,
inter alia, eliminating several grounds for decertification. FLA. STAT. ANN. § 943.1395 (West
Supp. 1987). The former law was repealed so the Commission could spend less time on decertification and devote more attention to certification. Telephone interview with A. Leon Lowry
II, Bureau Chief, Division of Criminal Justice Standards and Training, Florida Department of
Law Enforcement, Oct. 4, 1987 (on file with the authors at St. Louis Unive~sity School of
Law).
132. FLA. ADMIN. CODE ANN. r. 1IA-16.0l (current version at FLA. ADMIN. CODE ANN.
r. IlB-16.05. (1982)).

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TABLE I
FLORIDA CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION'S
ACTIONS AGAINST PEACE OFFICERS 1976-1983
1976 n=1
1977 n=9
1978 n=lO
1979 n=6
1980 n=9
1981 n=34
1982 n=47
1983 n=32
Total n=148

Decertification
1
8
10

6
9
28
44

26
132

Suspension
0
1
0
0
0
4
3
6
14

Probation
0
0
0
0
0
2
0
0
2

sion decertified, suspended, or placed on probation 112 officers, twenty of
whom were decertified for public, official misconduct.
The probable reason for the increase in decertifications after July
1980 was the enactment oflegislation explicitly authorizing the Commission to decertify for the following reasons:
(a) Failure to maintain qualifications established in [the Act]
or specific standards promulgated thereunder as rules;133
(b) Falsification or a willful material misrepresentation of information in an employment application to an employing agency;
(c) The commission of conduct by the certificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct
which seriously reduces the certificate holder's effectiveness to
function as a law enforcement ... officer. 134
Under Florida law, therefore, a criminal conviction is not a prerequisite to decertifying an officer for any of the three forms of police
misconduct-public, official misconduct, departmental misconduct, or
private misconduct. Indeed, a majority of decertification states authorize
decertification for reasons other than a criminal conviction. Nonetheless,
133. Qualifications for employment under FLA. STAT. ANN. §§ 943.13(4), (7) (West 1985
& Supp. 1987) provide, inter alia, that the person "not have been convicted of a felony or of a

misdemeanor involving peIjury or false statement" and that the person have "a good moral
character" as determined by investigation under procedures established by the Commission.
134. FLA. STAT. ANN. § 943.145 (West 1981), repealed by 1984 Fla. Laws ch. 834-258,
§ 25. The statutory provision currently authorizing decertification reads: "The commission
shall revoke the certification of any officer not in compliance with the provisions of
§ 943.13(1)-(1) and shall, by rule, adopt revocation of certification procedures pursuant to
chapter 120." FLA. STAT. ANN. § 943.1395 (West Supp. 1987). See supra note 133 for discussion of the primary grounds for decertification. An officer who commits public, official misconduct not resulting in conviction would be decertified under the "good moral character"
provision.

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police officers commonly face both criminal prosecution and decertification for the same transgression. In Florida, the percentage of decertified
officers convicted for public, official misconduct is almost the same as the
percentage of decertified officers convicted for departmental and private
misconduct. Roughly one-third of the decertifications for public, official
misconduct followed criminal convictions of the offending officer. 135
Thirty-eight percent of the decertifications for departmental or private
misconduct were based on criminal convictions. The legislation may also
have accounted for the Commission's increased willingness to investigate
charges of public, official misconduct. 136
Unlawful searches and seizures were not a significant part of public,
official misconduct cases. 137 Only two cases were found in the Florida
sample. Neither involved gathering evidence for a criminal investigation
and thus neither would have been subject to the exclusionary rule. In
135. Thirty-six percent (8 of 22) of the decertifications for public, official misconduct were
based on criminal convictions (five felonies and three misdemeanors).
136. See supra note 131.
137. As Tables 4 and 4A indicate, the major kinds of public, official misconduct were theft,
extortion, bribery (cases in which the officer requested sex or money in exchange for not arresting the citizen) and obtaining sexual favors (cases in which the officer demanded sex, without
offering not to arrest) during the course of an investigation. Only one assault case resulted in
decertification by the Commission.
TABLE 4
TYPE OF PUBLIC, OFFICIAL MISCONDUcr PUNISHED, 1976-1983

7
6
6
1
2
22

Theft
Bribery/Extortion
Sex
Assault
Miscellaneous
Total

TABLE 4A
PUBLIC, OFFICIAL MISCONDUcr, By YEAR, 1976-1983
Sex
1976 n=O
1977 n=1
1978 n=O
1979 n=O
1980 n=2
1981 n=9
1982 n=5
1983 n=5
Total n=22

0
0
0
0
0
4
1
1
6

Type of Conduct
Theft
Extortion/
Bribery
0
1
0
0
Imc
2fc
2
1
7

0
0
0
0
Ifc
Ifc
Ifc
3fc
6

Assault

Misc.

0
0
0
0
0
Ifc
0
0

0
0
0
0
0
I
1
0
2

mc = misdemeanor conviction in one case
fc = felony conviction in one case

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TABLE 2
TYPE OF POLICE CONDUCT RULED ON By FLORIDA-CRIMINAL JUSTICE
STANDARDS AND TRAINING COMMISSION, 1976-1983
Departmental and Private
Misconduct
1976 n=1
1977 n=9
1978 n=lO
1979n=6
1980 n=9
1981 n=34
1982 n=47
1983 n=32
Total n=148

Public, Official
Misconduct

o
1
o
o

1
8
10

6
7
25

2

9

5
5

42
27
126

22

one case a deputy sheriff removed a pocket calculator and adapter from a
private residence while evicting a tenant pursuant to legal process. In the
second case, a police officer shined his flashlight into a truck, briefly
TABLE 3
PUBLIC, OFFICAL MISCONDUCT CASES, 1976-1983
Commission
Action

Conduct Before
7/80

Conduct After
7/80

Before 7/80
After 7/80

2
7

13

o

awakening the occupant. The occupant, seeing a uniformed officer looking inside, went back to sleep. The officer then stole material from the
truck. 138

v.

Decertification and Public, Official Misconduct

As discussed, the clear majority of decertifications in Florida in138. Excessive use of force in arresting and detaining suspects raises fourth amendment
issues. At its October 1987 meeting, the Commission decertified an officer who pushed the
head of a handcuffed detainee into the bars of his cell, after earlier slamming the suspect's head
into the booking desk for verbally abusing the officer. The Commission has found probable
cause to decertify another officer for putting his gun down the throat of a robbery suspect at
the scene of the crime, after the suspect was subdued. Telephone interview with Joseph Kendrick, Case Manager of Decertification, Division of Criminal Justice Standards and Training,
Florida Department of Law Enforcement (Dec. 2, 1987) (on file with the authors at St. Louis
University School of Law).

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volved private or departmental misconduct. 139 None was for public, official misconduct of the constitutional, evidentiary type. 140 This section
suggests several reasons why this type of public, official misconduct is
less likely to result in decertification than other types of misconduct.
In most states authorizing decertification, a felony conviction of a
police officer is a ground for decertification.141 Criminal prosecutions of
police for private misconduct such as burglary and drug possession are
relatively common, while prosecutions for public, official misconduct of a
constitutional, evidentiary nature are rare. 142 Therefore, it is not surprising that none of the decertifications in Florida involved a felony conviction for constitutional, evidentiary misconduct. In the absence of a
conviction, evidence must be presented to a hearing officer, with the burden of proof on the state. 143 These cases typically involve a criminal
suspect who has been the victim of the unconstitutional action, the ac139. Eighty-five percent of the decertifications involved private or departmental
misconduct.
140. Because the Division makes available only those files of officers who have been decertified or otherwise disciplined by the Commission, we were unable to analyze cases that were
screened out at an earlier stage. Thus, cases in which probable cause was found but the officer
was exonerated after a hearing, or cases dismissed because of a Commission finding of no
probable cause might have involved constitutional, evidentiary misconduct. It may be that
such cases were never sent to the Commission from local departments which had the initial
responsibility to investigate and report under § 943.145 (repealed).
141. See, e.g., FLA. STAT. ANN. §§ 943.13(4), 943.1395(5) (West 1985 & Supp. 1987) (the
Commission shall revoke the certification of any officer convicted of any felony); Rules of Ga.
P. O.s. T. Council, ch. 464-4-.13 (1987) (council may suspend or revoke certification of officer
convicted by any state or by federal government of a felony); Iowa Law Enforcement Academy
Rules § 501-6.2(808) (1987) (mandatory revocation if the officer has been convicted of a felony); N.M. LAW ENFORCEMENT ACADEMY RULES AND REGS. rule 12, § A.16 (1980)
(grounds for decertification include conviction of felony or misdemeanor involving moral turpitude); OKLA. STAT. tit. 70, § 331l(K) (Supp. 1987) (council shall revoke the certification of
any person convicted of a felony); VT. STAT. ANN. tit. 20, § 2355(a)(11) (Supp. 1987) (decertification of persons convicted of felony subsequent to their certification as law enforcement
officers). In states without decertification, an officer convicted of a felony may be permitted to
remain in law enforcement. Even if the local department terminates the officer, another department within the state may hire him. However, hiring such officers would be a violation of
federal firearms law prohibiting possession of firearms by convicted felons who have not been
pardoned and explicitly permitted to carry firearms. 18 U.S.C. app. § 1202(a) (1985). The
hiring also may be in violation of state laws which prohibit carrying of weapons by persons
indicted for, or convicted of, certain felonies. See, e.g., OHIO REV. CODE ANN. § 2923.13
(Baldwin 1974). These laws are not self-enforcing and application depends on the willingness
of the local prosecutor or United States government attorney to second guess the hiring decision of the chief of police. See supra notes 68-76 and accompanying text.
142. See supra note 69 and accompanying text. In some decertification states a felony conviction is not a per se ground for decertification. See, e.g., Louisiana P. O.S. T. Rules for Retainillg P.0.s. T. Certification as a Peace Officer (1980); Mo. CODE REGS. tit. 11, § 75-3.080 (1980).
143. See supra note 74.

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cused police officer, and, sometimes, police officer witnesses. l44 The
decertification factfinder will have difficulty believing the victim in any
proceeding in which the police and the victim of police misconduct present conflicting versions of what happened in the privacy of the police
station, each police officer tells the same story,145 and the sole other witness is the victim with a criminal record.
Public, official misconduct cases also may be infrequent because
there is little incentive for citizens to participate in the process. Citizens
have nothing to gain from decertification except the personal satisfaction
derived from the offending officer's loss of his license. Citizen interest
would undoubtedly increase if the commission were able to redress grievances directly.146 Even without compensatory authority, however, decertification can indirectly assist victims of police misconduct. For example,
144. The Fifth and Fourteenth Amendments would not be violated by firing an officer who
refused to testify at the decertification proceeding, as long as the desired testimony would not
be used against him or her in a criminal case. Boxter v. Palmigiano, 425 U.S. 308, 316 (1976).
In Allen v. Illinois, 106 S. Ct. 2988 (1986), the Court held that a proceeding to commit an
individual to a maximum security institution under Illinois' Sexually Dangerous Offender Act,
ILL. ANN. STAT. ch. 38, para. 105-1.01 to 105-12 (Smith-Hurd 1963), was not a criminal
proceeding and therefore the fifth amendment privilege against self-incrimination did not apply. The fact that the accused was given procedural protections analogous to those given a
criminal defendant, including the right not to be committed unless the state proved its case
beyond a reasonable doubt, did not make the proceeding criminal. 106 S. Ct. at 2992. Decertification is a civil proceeding; thus, even when the police officer witnesses are themselves participants in the misconduct, they do not have a right under the Fifth or Fourteenth
Amendments to refuse to testify on the grounds that their testimony could be used against
them in another decertification proceeding.
State law, however, might prohibit the use of the officer's testimony in any future proceeding, civil or criminal. Florida's immunity statute prohibits the use of compelled testimony in
criminal cases or in any proceeding which constitutes a penalty or forfeiture. FLA. STAT.
ANN. § 914.04 (West Supp. 1987). The Florida Supreme Court has most recently interpreted
this provision to mean that such testimony cannot be used in a license revocation proceeding.
Lurie v. Florida State Bd. of Dentistry, 288 So.2d 223 (Fla. 1973). Lurie was decided by a 4-3
vote, however, and it overruled an earlier case which permitted the use of such testimony in a
license revocation proceeding. Headley v. Baron, 228 So.2d 281 (Fla. 1969). In such cases,
police could, nevertheless, be induced to testify if given immunity from use of their testimony
or from any evidence derived from such testimony in a subsequent criminal prosecution consistent with the Fifth and Fourteenth Amendments. Kastigar v. United States, 406 U.S. 441
(1972).
145. "A strong police subculture and a 'blue curtain' make the testimony of other police
officers and co-conspirators difficult to obtain." del Carmen, supra note 50, at 37. See also
Note, supra note 78, at 913 n.23. Professor Goldstein points out, "In fairness, it must be
recognized that the tendency on the part of police officers to close ranks in defense of a fellow
officer is a characteristic common to many other fields of endeavor, e.g., the notorious difficulty
in establishing malpractice in the medical field." Goldstein, supra note 80. at 165 n.ll.
146. The Minnesota Board of Peace Officer Standards and Training, MINN. STAT. ANN.
§ 626.84 (West 1983 & Supp. 1987), receives citizens' complaints and negotiates settlements
between the citizen and the officer, 4 MINN. R. § 13.037 (1982). See also MINN. ADVISORY
COMM. TO THE UNITED STATES CIVIL RIGHTS COMM'N, POLlCE PRACTICES IN THE TWIN

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the victim may be able to collaterally estop the defendant police officer,
based on the factual findings at the decertification hearing, in a subsequent civil action for damages. 147
CITIES, July, 1981, at 59-61; Levinson, Should Licensing Commissions Put Police on Trial?, 6
POLICE MAG. 23, 28 (1983).
Bar grievance proceedings could serve as a useful model. In those proceedings, a committee can order removal of a license and can remedy the complaints by, for example, issuing an
order for restitution of money wrongfully taken.
147. The Supreme Court has held that collateral estoppel barred relitigation in a 42 U.S.C.
§ 1983 suit, when the victim's motion to suppress had been denied during his state criminal
trial. Allen v. McCurry, 449 U.S. 90 (1980). The Court reasoned that § 1983 does not override
28 U.S.C. § 1738 which provides: U[J]udicial proceedings [of a state court] ... shall have the
same full faith and credit in every court within the United States ... as they have by law or
usage in the courts of such State ...." Id. at 97-98.
Following McCurry, the Supreme Court held that a state court affirmance of a decision by
a state administrative agency barred relitigation of the issue in lIl,l action in federal court under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1983). Kremer v. Chemical
Construction Corp., 456 U.S. 461, 481 (1982). So long as the state proceeding meets minimum
standards of due process, the Title VII plaintiff cannot relitigate the issue in federal court if he
could not do so in state court. Id. at 473-76.
Even when the agency decision has not been subjected to judicial review, the ruling may
be given preclusive effect. University of Tennessee v. Elliott, 106 S. Ct. 3220 (1986), unlike
McCurry and Kremer, involved an unreviewed state agency determination. The issue was
what effect the agency decision could have on a subsequent federal suit alleging violation of
various civil rights acts, including Title VII and § 1983. The Court considered whether federal
common law would require federal courts to give preclusive effect to such unreviewed state
administrative decisions. Id. at 3224. As to the Title VII claim, the Court held that Congress
did not intend such proceedings to have preclusive effect. Id. at 3224-25. As to a subsequent
§ 1983 suit, the Court held: u[W)hen a state agency 'acting in a judicial capacity ... resolves
disputed issues of fact properly before it which the parties have had an adequate opportunity to
litigate' federal courts must give the agency's factfinding the same preclusive effect to which it
would be entitled in the State's courts." Id. at 3227 (citation omitted).
Although federal courts no longer require mutuality of estoppel, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), Florida courts require
that there be an identity of parties before collateral estoppel can be asserted. Lorf v. Indiana
Ins. Co., 426 So.2d 1225, 1226 (Fla. App. 1983). Since the state is the moving party in a
decertification proceeding, in a later suit in a Florida state court by the victim of the conduct
for which the officer was decertified, the officer would not be precluded from relitigating the
issue. Therefore, the officer also would not be barred from relitigating the issue in a federal
§ 1983 suit.
A similar problem would arise if a state court would not permit the use of "offensive"
collateral estoppel. Offensive collateral estoppel permits the plaintiff (e.g., the victim of police
misconduct bringing a damage action) to prevent the defendant (the police officer) from relitigating an issue previously lost to a different plaintiff in the first action (the commission successfully decertifying the officer). Federal courts do allow offensive collateral estoppel for federal
issues, unless it is unfair to the defendant. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331
(1979). What should a federal court do in a § 1983 suit brought by the victim of police misconduct who seeks to use the issues determined in a decertification proceeding in a state which
does not recognize offensive collateral estoppel? For a discussion of whether a federal court in
a § 1983 case should give more preclusive effect to the issues determined in a state court proceeding than a state court would, see Shapiro, The Application 0/State Claim Preclusion Rules
in a Federal Civil Rights Action, 10 OHIO N.U.L. REV. 223, 235-39 (1983).

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In public, official misconduct cases, the statutory grounds for decertification in the absence of a conviction tend to be vague. The Florida
statute authorized decertification for "unfitness, gross immorality or
gross misconduct which seriously reduces the officer's effectiveness as a
law enforcement official."148 Such a catchall provision is subject to attack for violation of due process on grounds of vagueness. 149 Even if the
language meets constitutional standards, the Commission might believe
that only the most outrageous public, official misconduct should come
within it. Thus, new statutory language or commission rules should be
approved which expressly make certain misconduct, such as illegal
searches and seizures, arrests, or interrogations, decertifiable. The legislature or commission also should limit decertification to officers with a
pattern of such misconduct, unless the first incident is clearly intentional.
The Supreme Court's adoption of the good faith exception to the
exclusionary rule for the "reasonably welf trained officer" 150 gives incentive to police departments to increase the training their personnel receive
with respect to constitutional rights. Under such circumstances, a commission may be more willing to exercise its decertification authority for
constitutional violations because the police received specific instruction
on those rights during training. However, the intricacies and fluidity of
constitutional law are not easily understood or taught. 1S1
Even when it is not required by statute or rule, a commission may
decide that public, official misconduct does not merit decertification unless the conduct results in a felony conviction or is otherwise outra148. FLA. STAT. ANN. § 943. 145(3)(c) (West 1981), repealed by 1984 Fla. Laws ch. 87-258,
§ 25. The current provision under which officers are decertified for public, official misconduct
not resulting in a conviction is no less problematic: conduct indicating the officer does not
have "good moral character." FLA. STAT. ANN. § 943.13(7) (West 1985 & Supp. 1987).
149. "[A] statute which either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Const. Co., 269
U.S. 385, 391 (1926). Local police department regulations which punish conduct "unbecoming to the service" have been successfully challenged as vague when the officer's conduct involved speech activities. Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) (officers, leaders of the
labor union, sent a letter of protest to their labor negotiator and posted the letter at various
union bulletin boards located at various police locations). However, challenges to the regulations have failed when the conduct was not related to speech activity. Allen v. City of Greensboro, 452 F.2d 489 (4th Cir. 1971) (officer made sexual advances while conducting a criminal
investigation).
150. United States v. Leon, 468 U.S. 897, 923, 926 (1984), reh'g denied, 468 U.S. 1250
(1984).
151. See, e.g., Illinois v. Gates, 462 U.S. 213, 232 (1983). After discussing the great variation in the value and reliability of informants' tips, the Court concluded: "[r]igid legal rules
are iII-suited to an area of such diversity." See also infra note 154 and accompanying text.

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geous. 152 It might well conclude that as long as the Supreme Court is so
closely divided on what constitutes unconstitutional conduct under the
Fourth, Fifth, Sixth, and Fourteenth Amendments, it is inappropriate to
decertify an officer who violates a suspect's rights unless the conduct is
blatantly unconstitutional. 153 Should the Court succeed in developing
clearer guidelines on what is unconstitutional so that "a policeman [can]
know the scope of his authority,,,154 a commission might be more willing
to decertify for the offending conduct.
Since local police departments have not acted effectively on citizen
complaints of public, official misconduct,155 the effectiveness of a state
decertification commission controlled by the same law enforcement community undoubtedly will be called into question. Some critics have argued, as a result, that a commission can effectively deal with public,
official misconduct only if it is under civilian control. 156 This comparison may not be fair; there are significant differences between a local police department and a state decertification commission. Foremost among
them is the fact that the commission is an independent body and thus
removed from intradepartmental forces. Placing the commission under
civilian control, moreover, may repeat the unsatisfactory experience of
civilian review boards in local departments 157
Prudence counsels that the commission membership be carefully
balanced to fulfill its sensitive function. Current procedures typically require the appointment of sheriffs and police personnel from both rural
and urban jurisdictions and representing both command and line author152. The commissioners might adopt a type of "shock the conscience" test similar to that
used by the Supreme Court for determining when police conduct violates due process. Rochin
v. California, 342 U.S. 165, 172 (1952). If police officers believe that the use of force towards
citizens to encourage respect is legitimate, commissioners who share this view will not likely
decertify for illegal use of force. Note, supra note 78, at 912 n.16.
153. "A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and
requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady
stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be 'literally
impossible of application by the officer in the field.''' LaFave, "Case-by-Case Adjudication"
Versus "Standardized Procedures"; The Robinson Dilemma, 1974 SUP. CT. REV. 127, 141
(1972) (citing United States v. Robinson, 471 F.2d 1082, 1122 (1972)). Whether the new rules
in fact give the police "bright lines" is open to question. New York v. Belton, 453 U.S. 454,
470 (1981) (Brennan, J., dissenting).
,~
154. New York v. Belton, 453 U.S. 454, 460 (1981).
155. See supra notes 78-81 and accompanying text.
156. A few states have decertification boards which are not coiltrolled by law enforcement
officials. See supra note 97. After these states have decertified larger numbers of officers over a
period of several years, it would be useful to compare such decertification to the Florida data
to see if these state boards are more willing to decertify for constitutional misconduct of an
evidentiary nature.
157. See supra note 86 and accompanying text.

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ity.158 Control of a commission by a single law enforcement constituency
might prejudice the commission against decertifying members of the controlling constituency.159 Such control may account for the relatively few
decertifications in some states with decertification authority.
Taken at face value, the Florida experience suggests that constitutional, evidentiary misconduct cannot be reached by decertification.
However, interviews with Florida Commission members revealed that
they were willing to decertify for fourth amendment violations. 160
Whether they would do so if actually faced with a case may be another
question altogether.
Decertification may have an indirect impact on constitutional misconduct. An officer who is removed for nonconstitutional misconduct
may have committed fourth amendment violations. For example, an officer who is decertified for extorting money or sexual favors in exchange
for not arresting a criminal suspect demonstrates a willingness to disregard the law which may extend to constitutional protections. 161 Files of
some officers decertified in Florida for private or departmental misconduct contained allegations of public, official misconduct of both a constitutional and nonconstitutional nature. 162

VI. State Versus National Decertification Programs
Can decertification work state by state, or is a national program
needed? Upon request, Florida's Criminal Justice Standards and Training Division staff will respond to out-of-state inquiries concerning the
status of an officer's certificate. In Florida, decertified officers or those
whose decertifications were pending were nonetheless able to find employment as police officers in other states.
This situation calls for the creation of an information network accessible to all states. The network could be similar to that employed by the
legal profesion, the National Discipline Data Bank, which makes certain
158. FLA. STAT. ANN. § 943.11 (West 1985). Police officers who have regular, direct contact with the public are the line authority in police departments. In Florida, sergeants and
patrolmen are the main line authority components.
159. The Florida Commission has been able to avoid this problem through an independent
Division which staffs the Commission as well as a dispersal of power among the various law
enforcement and other constituencies which make up the Commission. FLA. STAT. ANN.
§ 943.11 (West 1985).
160. Interviews on file with authors at St. Louis University School of Law.
161. Clarence Harmon, Commander, Internal Affairs, St. Louis Police Department, stated
that in his experience, officers who engage in such extortion are the same officers who ignore
suspects'rights. Interview in St. Louis, Missouri, July 16, 1986 (interview on file with authors
at St. Louis University School of Law.)
162. Materials on file with the authors at St. Louis University School of Law.

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professional information available to all state bar admission
committees. 163
It may be that aggressively administered decertification programs,
state or national, could have the effect of shrinking the pool of available
officers willing to work for low pay. 164 Some small departments may not
be able to afford to pay higher salaries. In this event, the municipality
will have to consider alternative ways to get police protection, such as
merging with neighboring municipalities or contracting with the county
department. 165
Decertification offers perhaps the best chance for states to take responsibility for removing unfit police officers from the profession. Florida's beginning suggests that states can fairly and firmly regulate at least
163. The American Bar Association National Center for Professional Responsibility sponsors The National Discipline Data Bank. The Data Bank collects voluntary information from
federal and state courts and administrative agencies in the United States. The courts and agencies give information "on lawyers who have been publicly disciplined by court action, have
been transferred to inactive status, or who have resigned from the Bar while their conduct was
under investigation." The Data Bank maintains a computer-based information system for requests about specific lawyers. The Data Bank also conducts research on the underlying bases
for disciplinary action. AMERICAN BAR AsS'N NAT'L CENTER FOR PROFESSIONAL RESPONSIBILITY, PAMPHLET ON NATIONAL DISCIPLINE DATA BANK SERVICES 2 (copy on file with
the Hastings Constitutional Law Quarterly).
164. See supra note 13.
165. Most local police departments in the United States are made up of 10 or fewer officers.
THE AMERICAN POLICE: TEXT AND READING 29 (H. Marc, ed. 1976). The 1973 National
Advisory Commission on Criminal Justice Standards and Goals recommended that departments ofless than 10 officers be eliminated. Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN
CRIMINAL PROCEDURE 36 n.m (1986). For a discussion of the minimum acceptable size for
United States police services, see E. OSTROM, R. PARKS & G. WHITAKER, DECISION-RELATED RESEARCH ON THE ORGANIZATION OF SERVICE DELIVERY SYSTEMS IN METROPOLITAN AREAS: POLICE PROTECTION (1979). Since 1946, the English Secretary of State has had
the power to order an amalgamation of police forces in towns of less than 100,000. The Police
Act, 1946, 9 & 10 Geo. 6, ch. 46, § 4. A Royal Commission on the Police recommended
increased powers in the Secretary of State to order amalgamations of police forces without
regard to population of the areas affected. ROYAL COMMISSION ON THE POLICE, FINAL REPORT, 1962, CMND. No. 1728, para. 289. The Commission believed that the minimum acceptable size of a police force was 350 officers, with 500 being the optimum. Id. para. 280. Among
the problems with smaller forces are:
[D]iscipline is difficult to enforce impartially and unpleasant in its effects, because the
disciplined man is too well known to his chief constable, to his fellows, and to the
public. The risk of undesirable pressure being brought to bear on members of the
force by local people, whether members of the local authority or others, is greater.
And, not least important, it is no easy matter to find for such a force a chief constable
with all the qualities which ought to go with that responsible and semiautonomous
office.
Id. para. 279. For empirical research on the ability of small departments to achieve efficiencies
through cooperative efforts on a regional basis rather than through consolidation, see E. OsTROM, R. PARKS & G. WHITAKER, POLICING METROPOLITAN AMERICA (1978); E. OSTROM,
R. PARKS & G. WHITAKER, PATTERNS OF METROPOLITAN POLICING (1978).

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some kinds of public, official misconduct of police. If states do not accept this responsibility, Congress could legislate national standards. 166
However, such legislation may be constitutionally infirm because it interferes with the traditional state prerogative of regulating police. 167 In
consideration of such concerns, states should be encouraged to do the job
themselves.

Conclusion
The major concern of this Article is whether decertification of police
officers offers a viable method for curbing public, official misconduct of
an evidentiary nature. Because the United States Supreme Court has recently limited the use of the exclusionary rule,168 the debate on alternative means to deter illegal police conduct is significant. At first glance,
decertification commissions would seem to be ineffective in dealing with
public, official misconduct, at least when the investigation is left in the
hands of the local agency for whom the officer works 169 and the commissions are composed largely of law enforcement personnel. 170
Although decertification addresses many serious aspects of police
misconduct, the Florida model and the present nature of the decertification process indicate that decertification is ineffective to deter unconstitutional police actions aimed at obtaining evidence. In Florida, the
Commission disciplined no unconstitutional police conduct of an eviden166. Congress undoubtedly has the power to enact such legislation under § 5 of the Fourteenth Amendment and the Commerce Clause. Section 5 reads: "The Congress shaH have
power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST.
amend. XIV, § 5. Under the Enforcement Clauses of various constitutional amendments, the
Supreme Court has upheld congressional remedies for discrimination in "oting, Oregon v.
MitcheH, 400 U.S. 112 (1970) (section 2 of the Fifteenth Amendment); Katzenbach v. Morgan,
384 U.S. 641 (1966) (section 5 of the Fourteenth Amendment); South Carolina v. Katzenbach,
383 U.S. 301 (1966) (section 2 of the Fifteenth Amendment), and employment, Fullilove v.
Klutznick, 448 U.S. 448 (1980) (Commerce Clause for private employers, section five of the
Fourteenth Amendment for public employers). So long as Congress is using the Enforcement
Clause to expand rather than cut back on constitutional protections of due process and equal
protection, the Court will defer to Congress' judgment. Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982). Thus, as a remedy for violations of suspects' constitutional rights,
Congress could provide for federal decertifications under § 5.
167. Under present case law, the Tenth Amendment would not forbid such a statute. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). However, Garcia
was a 5-4 decision and some of the dissenters suggested that a change in Supreme Court personnel could cause a return to National League of Cities v. Usery, 426 U.S. 833 (1976), and a
reinvigorated Tenth Amendment. Garcia, 469 U.S. at 580 (Rehnquist, J., dissenting); id. at 589
(O'Connor, J., dissenting).
168. See supra notes 28-40 and accompanying text.
169. Littlejohn, Civiliall Police Comm'lI, supra note 77, at 17 n.75.
170. Gelhorn, supra note 86, at 7.

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tiary nature from October 1976 to October 1983. 171 The nature of the
decertification process in Florida is not conducive to the filing of victims'
complaints by criminal suspects l72 nor to the success of those complaints
once filed. 173 The language of the Florida statute during the period of
our study leads to the interpretation that only gross misconduct is decertifiable. 174 Also, the complicated nature of constitutional criminal procedure law renders it inadequate to teach to law enforcement officers, not
to mention the non-legal decertification commissions. 175 Because the
commissions may be reluctant to punish unintentional misconduct, only
blatant unconstitutional actions may be decertifiable. 176 Although some
officers who habitually violate the constitutional rights of criminal suspects may be decertified for other misconduct, this will not deter constitutional, evidentiary wrongs by the remaining police community. To set
an effective deterrent example, there must be a causal link between the
unconstitutional, evidentiary misconduct and the decertification. The
failure of decertification to deter unconstitutional, evidentiary police misconduct leaves, for the most part, only the exclusionary rule to remedy
illegal searches and seizures, and interrogations which violate the constitutional rights of suspects. As the Supreme Court further limits this
remedy, effective procedures for state protection of these rights become
more important.
Our purpose in analyzing the files of decertified officers in Florida
was to determine whether the kind of misconduct for which officers were
decertified would have triggered the exclusionary rule remedy. We conclude that officers during the period of the study were not decertified for
such misconduct, although it is reasonable to assume that officers who
were decertified for seriously abusing citizens are the same officers who
would unconstitutionally obtain evidence from suspects. l77 Even if
decertification does not work, directly or indirectly, to remove officers
who violate constitutional rights of suspects in obtaining evidence, the
mere existence of statutes or regulations authorizing decertification for
such misconduct may be sufficient for the Supreme Court to extend further the good faith exception to the exclusionary rule as it did in Leon.
In Lopez-Mendoza, INS agents had been disciplined for misconduct towards aliens not involving fourth amendment violations. Nonetheless,
171.
172.
173.
174.
175.
176.
177.

See supra
See supra
See supra
See supra
See supra
See supra
See supra

notes 132-139 and accompanying
note 145 and accompanying text.
notes 143-144 and'accompanying
note 148.
notes 151-153 and accompanying
notes 152-154 and accompanying
note 161-162.

text.
text.
text.
text.

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the Court found the INS procedures to be an alternative to the exclusionary rule which justified its abandonment in deportation cases. Therefore,
the fact that Florida officers have been decertified, albeit not for fourth
amendment exclusionary rule violations, might be sufficient for the Court
to abandon the exclusionary rule in a state like Florida which potentially
could decertify for constitutional violations of an evidentiary nature and
which has decertified for other kinds of misconduct. Such a result would
be inadvisable given the failure of current decertification procedures to
provide an effective remedy for public, official police misconduct of the
constitutional, evidentiary type.

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