No. 2016-11

Importance of State Law in Police Reform

Roger Goldman
Saint Louis University - School of Law

May 17, 2016

Saint Louis University Law Journal, Vol. 60, No. 363, 2016

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IMPORTANCE OF STATE LAW IN POLICE REFORM
ROGER GOLDMAN*
INTRODUCTION
Citizens, judges, and scholars alike concerned about police misconduct
traditionally believe that the federal, rather than state or local, government is
best able to bring about police reform. Generations of law students have been
taught that virtually the only way effectively to control the police is by
excluding evidence in the possession of a criminal defendant that was obtained
in an unconstitutional manner; alternative remedies have been deemed
ineffective in United States Supreme Court opinions.1 Omitted almost entirely
from the discussion in Supreme Court opinions and criminal procedure courses
is the role of state law in police reform efforts.
In recent Roberts Court opinions, four justices have indicated that they are
opposed to excluding evidence even where it is obtained in violation of the
Fourth Amendment because the costs of letting a guilty defendant go free are
too high and there are other remedies that can protect Fourth Amendment
interests.2 They note that times have changed since the 1961 case of Mapp v.

* Callis Family Professor of Law Emeritus, Saint Louis University School of Law.
1. Wolf v. Colorado, 338 U.S. 25, 41 (1949) (Murphy, J., dissenting) (“For there is but one
alternative to the rule of exclusion. That is no sanction at all.”); Mapp v. Ohio, 367 U.S. 643,
652–53 (1961) (“The experience of California that such other remedies have been worthless and
futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth
Amendment to the protection of other remedies has, moreover, been recognized by this Court
since Wolf.”); Rachel A. Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32
ST. LOUIS U. PUB. L. REV. 33, 33 (2012) (“Here is the bad news: with respect to deterring police
misconduct, federal remedies are almost as good as they are ever going to get. The remedies
probably reduce police misconduct some now, and they can be tailored to induce somewhat more
reform. However, legal, structural, and practical limits on the capacity of existing federal
remedies to deter misconduct ensure that even with improvements they can be only marginally
more effective.”).
2. E.g., Herring v. United States, 555 U.S. 135, 147–48 (2009) (holding that the
exclusionary rule is prudential rather than constitutional and the cost of letting a criminal go free
should be weighed against the deterrent effect); Davis v. United States, 131 S. Ct. 2419, 2423–24
(2011) (“Because suppression would do nothing to deter police misconduct in these
circumstances, and because it would come at a high cost to both the truth and the public safety,
we hold that searches conducted [in violation of the Fourth Amendment] in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.”).
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Ohio, where the Court first imposed the exclusionary rule on the states for
Fourth Amendment violations by state and local police officers.3 At the time of
Mapp, cities weren’t civilly liable for misconduct by police departments under
the Civil Rights Act, 42 U.S.C. § 1983, and attorneys representing victims of
that misconduct weren’t able to recover attorneys fees until the enactment of
42 U.S.C. § 1988 in 1976. Those justices also point to effective administrative
remedies at the local police department level, such as civilian review boards
and better training of officers than existed at the time of Mapp.4 This Article
will focus on state law, both its weaknesses as well as its potential to be a
major source for police reform efforts, and suggest that courses in criminal
procedure should include materials on state law remedies. After discussing the
limitations of federal law in bringing about reform, I will describe the
shortcomings of state law, point out current state laws that have been effective
in addressing police misconduct, analyze the new laws enacted since Michael
Brown’s death in Ferguson in August 2014 and, finally, suggest ways that the
federal government can work with the states to improve police accountability.
I. LIMITATIONS OF FEDERAL REMEDIES
A.

The Exclusionary Rule

The current members of the Supreme Court are split 4–4 on the efficacy of
the exclusionary rule (Justice Kennedy, as is often the case, is the swing
justice).5 The Court has clearly weakened the application of the rule in a great
number of cases since the heyday of the rule during the Warren Court era in
the 1960s (e.g. in United States v. Leon, the Court adopted the good faith
exception, which permits the admission of evidence seized in violation of the
Fourth Amendment6). But the purpose of this Article is not to review that
3. E.g., Davis, 131 S. Ct. at 2440 (Breyer, J., dissenting) (noting a “trend” and a change
“which may already be underway”).
4. The Court cited the work of Professor Sam Walker who disagreed with the Court’s
conclusion that local remedies supplanted the need for the exclusionary rule. Hudson v.
Michigan, 547 U.S. 586, 598–99 (2006) (accepting that it is proper to assume that police
misconduct can be “dealt with appropriately” by local authorities, given “increasing
professionalism of police forces” and their improved “internal police discipline” (quoting United
States v. Payner, 447 U.S. 727, 733–34 (1980) and SAMUEL WALKER, TAMING THE SYSTEM:
THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE 1950–1990 51 (1993))). However,
Professor Walker maintains that Justice Scalia “twisted [Walker’s] main argument to reach a
conclusion the exact opposite of what I spelled out in this and other studies.” Samuel Walker,
Thanks for Nothing, Nino, L.A. TIMES (June 25, 2006), http://articles.latimes.com/2006/jun/25/o
pinion/oe-walker25 [http://perma.cc/FHF4-UQ87].
5. Hudson, 547 U.S. at 603 (Kennedy, J., concurring) (“Today’s decision determines only
that in the specific context of the knock-and-announce requirement, a violation is not sufficiently
related to the later discovery of evidence to justify suppression.”).
6. United States v. Leon, 468 U.S. 897, 905–06 (1984).

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history but to make the point that even if the rule were applied vigorously,
there is no empirical evidence to support the proposition that an officer who
has been found to have violated the rule, resulting in dismissal of the charges
against the defendant in the absence of other evidence, is disciplined for the
violation by his department. And, even assuming the officer is fired for
violating the Constitution or for other reasons, in many jurisdictions, the
collective bargaining agreements provide for arbitration of the issue, and it is
quite common for the officer to be put back on the job, leading to back pay and
reinstatement.7 And, even if the officer is terminated, and the termination is
upheld by the arbitrator or civil service commission, the officer would be free
to be hired by another department. Only state law could prevent the subsequent
employment.
B.

Damage Suits Brought Pursuant to 42 U.S.C. § 1983

Federal civil damages suits under § 1983 or equivalent state court suits
brought against police officers,8 their departments, and municipalities, which
result in settlements in favor of the victim of the unconstitutional conduct, “[do
not] seem to be a very effective tool for widespread reform.”9 In some cities,
the payouts are enormous.10 Again, there is little empirical evidence that such
judgments or settlements result in officer discipline. And, even if the officer is
terminated, another department can rehire him, unless state law has a process
for preventing that from occurring.
7. Edward Mason & Tom Mashberg, Court Orders Boston Police to Reinstate Fired
Officer, BOS. GLOBE (July 22, 2015), http://www.bostonglobe.com/metro/2015/07/21/court-or
ders-bpd-reinstate-officer/5nFsG6xFYZzcJ3WiT8yzbO/story.html [http://perma.cc/7C4A-TE
6D]; see also Roger L. Goldman & Steven Puro, Revocation of Police Officer Certification: A
Viable Remedy for Police Misconduct?, 45 ST. LOUIS U. L.J. 541, 559 (2001). Also, provisions in
many police employment contracts prohibit public access to investigations into police misconduct
or wrongdoing. George Joseph, Leaked Police Files Contain Guarantees Disciplinary Records
Will Be Kept Secret, GUARDIAN (Feb. 7, 2016), http://www.theguardian.com/us-news/2016/feb/
07/leaked-police-files-contain-guarantees-disciplinary-records-will-be-kept-secret [http://perma.
cc/8FG7-QAFA].
8. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 960 (2014). Joanna
Schwartz has shown that police officers rarely personally pay those judgments or settlements. Id.
9. Henry Gass, The Freddie Gray $6.4 Million Settlement Is Big, but Will It Send Right
Message?, CHRISTIAN SCI. MONITOR (Sept. 9, 2015), http://www.csmonitor.com/USA/Justice/
2015/0909/The-Freddie-Gray-6.4-million-settlement-is-big-but-will-it-send-right-message
[http://perma.cc/79T8-E5YY] (quoting Professor Kami Chavis-Simmons).
10. Amanda Bronstad, Plaintiffs Bar Goes After Police Brutality Cases, NAT’L L.J. (Aug.
12, 2015), http://www.nationallawjournal.com/id=1202734621413/Plaintiffs-Bar-Goes-After-Po
lice-Brutality-Cases [http://perma.cc/748Q-U4VC] (“‘It’s one of the hot practices of law right
now you see being reported and, because of that, you’ll see a lot of attorneys jump into it,’ said
Daryl Washington, managing partner of The Law Offices of Daryl K. Washington in Dallas, who
spoke about police brutality cases at the National Bar Association’s annual conference last
month.”).

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C. Criminal Prosecutions
The dissenters in Wolf and the majority in Mapp were skeptical of criminal
prosecution of police by states, noting that prosecutors must rely on the local
police to investigate criminal cases.11 There was little discussion of federal
prosecution of state and local police officers because, at the time of the Mapp
decision in 1961, federal prosecution of police officers by the Civil Rights
Division was in its infancy—the Division was set up in 1957, and, between
1958 and 1960, there were only four convictions of police officers.12 The
number of prosecutions and convictions under 18 U.S.C. §§ 241 and 242 has
risen dramatically since that time, but the total is still small: In Fiscal Year
2001, there were a total of approximately 6,000 complaints against law
enforcement officers, there were ninety-seven prosecutions brought against law
enforcement officers in that year, and, of the sixty-nine officers whose cases
were resolved in that year, there were forty-two guilty pleas, fourteen
convictions, and thirteen acquittals.13 And, in the most recent report for cases
brought in 2011,14 out of 10,000 complaints, only 224 officers were charged.15
As stated by one commentator, “prosecutions against police officers are too
rare to deter misconduct.”16 Unless the violence is gratuitous—for example,

11. Wolf v. Colorado, 338 U.S. 25, 42 (1949) (Murphy, J., dissenting); Mapp v. Ohio, 367
U.S. 643, 670 (1961) (Douglas, J., concurring). State criminal prosecution of police officers will
be discussed infra Part II(B).
12. Alexis Agathocleous & Heather Ward, Prosecuting Police Misconduct: Reflections on
the Role of the U.S. Civil Rights Division, VERA INST. JUST. (1998), http://www.vera.org/sites/de
fault/files/resources/downloads/misconduct.pdf [http://perma.cc/Q7PL-K3NN]. Consequently,
“the Division brought few prosecutions for police violence against civil rights volunteers during
voter registration drives, sit-ins, and protests.” Long Road to Justice: The Civil Rights Division at
50, LEADERSHIP CONFERENCE ON CIVIL RIGHTS EDUC. FUND (Sept. 2007), http://www.judiciary.
senate.gov/imo/media/doc/07-09-05HendersonTestimony.pdf [http://perma.cc/3VVK-C67S]; see
Jay Stewart, NAACP v. The Attorney General: Black Community Struggle Against Police
Violence 1959–68, 9 HOWARD SCROLL: SOC. JUST. L. REV. 29 (2006).
13. The acquittal rate for law enforcement officers is in stark contrast to other non-law
enforcement officer defendants. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, SUMMARY OF
CRIMINAL SECTION ACTIVITIES (FY1985–FY2001) (last updated Sept. 30, 2001), included in a
facsimile from Albert N. Moskowitz, Chief, Criminal Section, Civil Rights Div., U.S. Dep’t of
Justice, to Roger Goldman, Professor of Law, St. Louis Univ. (Mar. 4, 2002) (on file with
author); Roger L. Goldman, State Revocation of Law Enforcement Officers’ Licenses and Federal
Criminal Prosecution: An Opportunity for Cooperative Federalism, 22 ST. LOUIS U. PUB. L.
REV. 121, 126 n.26, 127 (2003).
14. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, FY 2014 PERFORMANCE BUDGET:
CONGRESSIONAL SUBMISSION 20–21 (2014), http://www.justice.gov/sites/default/files/jmd/leg
acy/2014/05/11/crt-justification.pdf [http://perma.cc/2WBL-XTQ4].
15. See id. The report did not state how many officers were convicted, pled guilty, or were
acquitted.
16. Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62
STAN. L. REV. 1, 9 (2009).

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the victim is handcuffed or unconscious, and then he’s beaten or shot—
convictions can be obtained; but, if there is any resistance, flight, or movement
towards the officer, juries will rarely convict. That conclusion is in accord with
one author’s assessment that only the most egregious behavior by an officer is
reached by federal criminal prosecutions.17
D. Pattern or Practice Suits Under 42 U.S.C. § 14141
42 U.S.C. § 14141 makes it unlawful for state and local law enforcement
officers to engage in a pattern or practice of conduct that deprives persons of
rights protected by the Constitution or laws of the United States. The law was
enacted in 1994 after the videotaped beating of Rodney King by several Los
Angeles Police Department (LAPD) police officers, the state court acquittals of
those officers, and the subsequent riots in Los Angeles.18 It gives the
Department of Justice (DOJ)—but not individuals—the power to seek
equitable and declaratory relief to eliminate the pattern or practice. The law is
enforced by the DOJ’s Special Litigation Section of the Civil Rights
Division.19
According to a 2014 law journal article on § 14141, there have been thirtyeight formal investigations by the DOJ, nineteen negotiated settlements, and
nine monitors appointed.20 A more recent source—perhaps including informal
investigations—has the total at seventy investigations: twenty-four that cleared
the law enforcement agency, thirty-five producing settlement agreements, and
one advisory letter.21 Seven have settlements currently being monitored.22 Only
one law enforcement agency has gone to trial and won.23 Although that is
progress compared to the pre-1994 years when the DOJ had no such authority,
there are a total of 18,000 state and local law enforcement agencies in the
country,24 and “the DOJ has only been able to investigate around three law

17. Debra Livingston, Police Reform and the Department of Justice: An Essay on
Accountability, 2 BUFF. CRIM. L. REV. 815, 842 n.138 (1999).
18. Stephen Rushin, Federal Enforcement of Police Reform, 82 FORDHAM L. REV. 3189,
3207 (2014).
19. Conduct of Law Enforcement Agencies, U.S. DEP’T OF JUST., http://www.justice.gov/crt/
conduct-law-enforcement-agencies [http://perma.cc/ET9K-NTCY] (last visited Sept. 13, 2015).
20. Rushin, supra note 18, at 3226.
21. Stephen Deere, The Cost of Change, ST. LOUIS POST-DISPATCH, Feb. 1, 2016, at A1,
http://www.stltoday.com/news/local/crime-and-courts/ferguson-residents-weigh-cost-of-reform/
article_c011c5b9-0644-535a-b3f6-e861f119a868.html [http://perma.cc/E5X5-J69T].
22. Id.
23. Id.
24. See Uniform Crime Reports, FBI, http://www.fbi.gov/about-us/cjis/ucr/ucr [http://per
ma.cc/9AQV-GMDP] (last visited Feb. 7, 2016).

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enforcement agencies each year under § 14141—or less than 0.02% of the
nation’s police departments.”25
In the wake of Ferguson, the DOJ has conducted two investigations in St.
Louis County: one involving the Ferguson Police Department,26 and the other
involving the St. Louis County Family Court.27 In the Ferguson case, the DOJ
has proposed a consent decree.28 The Ferguson City Council refused to accept
the consent decree as written, offering several modifications: none of the
police rules would be enforceable if Ferguson contracted services elsewhere,
removed the required police salary increases, and extended effect dates for
various provisions.29 The fact that the reforms and monitoring provisions of the
original decree would cost Ferguson nearly four million dollars the first year
was the primary justification for not accepting it.30 The DOJ quickly responded
with a press release indicating that cost is no reason to continue failure to
comply with constitutional requirements.31 Since the existing decree was the
result of months of careful negotiations, Ferguson’s unilateral modifications
that would delay constitutional policing were unacceptable.32 Within the day,
the DOJ filed its lawsuit against Ferguson.33
It is thus understandable why Laurie Robinson, the co-chair of President
Obama’s Task Force on 21st Century Policing (“Task Force”), stated that the
primary responsibility for police reform cannot come from federal edicts:

25. Stephen Rushin, Using Data to Reduce Police Violence, 57 B.C. L. REV. 117, 123
(2016).
26. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE
DEPARTMENT (Mar. 4, 2015), http://www.justice.gov/sites/default/files/opa/press-releases/attach
ments/2015/03/04/ferguson_police_department_report_1.pdf [http://perma.cc/T7RG-C9SH].
27. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE ST. LOUIS COUNTY
FAMILY COURT, ST. LOUIS, MISSOURI (July 31, 2015), http://www.justice.gov/sites/default/files/
crt/legacy/2015/07/31/stlouis_findings_7-31-15.pdf [http://perma.cc/6C9X-8TCX].
28. Deere, supra note 21; Consent Decree, United States v. City of Ferguson, http://assets.
documentcloud.org/documents/2699153/Negotiated-Ferguson-Draft-Consent-Decree.pdf
[http://perma.cc/9J85-E3MB].
29. Stephen Deere & Kristen Taketa, Ferguson Sends Decree Back, ST. LOUIS POSTDISPATCH, Feb. 10, 2016, at A1, http://www.stltoday.com/news/national/ferguson-council-s-voteto-turn-back-consent-decree-could/article_b370242d-8ce5-5301-8706-0dd3f79e08b5.html
[http://perma.cc/7VF3-MVW6].
30. Id.
31. Press Release, Dep’t of Justice, Statement from Head of the Civil Rights Division Vanita
Gupta Regarding Ferguson, Missouri, City Council Vote on Proposed Consent Decree (Feb. 10,
2016), http://www.justice.gov/opa/pr/statement-head-civil-rights-division-vanita-gupta-regardingferguson-missouri-city-council [http://perma.cc/NG8V-F57H].
32. Id.
33. Stephen Deere, U.S. Sues Ferguson, ST. LOUIS POST-DISPATCH, Feb. 11, 2016, at A1,
http://www.stltoday.com/news/local/govt-and-politics/department-of-justice-sues-ferguson-overpolice-practices/article_8dc60c25-809a-51dc-865e-aff2c7947710.html [http://perma.cc/R7H9EQKF].

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“[C]riminal justice officials should step forward and ‘own this problem. . . . All
of this has to come, of course, from the bottom up—from state and local
leaders.’”34 Her co-chair, Charles Ramsey, commissioner of the Philadelphia
Police Department, has stated that, given the differences among police
departments, there is “no one-size-fits all” solution.35
II. SHORTCOMINGS OF STATE LAW
After the Task Force completed its work, interviews with the two co-chairs
revealed concerns about the qualifications of police officers.36 Ramsey stated
that many of the problems stem from basic practices like hiring and training,
noting that police hiring efforts typically display videos of SWAT teams and
police helicopter deployments to applicants: “Who is going to apply?”37
Robinson observed that the Task Force spent little time on hiring issues, and
she recommended that “law enforcement training should include topics like
‘people and relationships,’ when in practice it tends to dwell on seemingly
more practical items like ‘guns and cars.’”38
A.

Employment Practices of Police Departments
1.

Hiring Problems

Although it is generally assumed that police departments will not
knowingly hire officers who have been fired or resigned under fire from other
departments, there are many reasons why such officers are, in fact, hired.39
One of the major reasons for the protests in Ferguson after the shooting of
Michael Brown was the anger of residents of the ninety St. Louis County
municipalities at the treatment by many of the fifty-seven St. Louis County

34. Ex-Assistant AG Urges Police to Adopt Task Force Ideas, CRIME REP. (Aug. 4, 2015),
http://www.thecrimereport.org/news/crime-and-justice-news/2015-08-robinson-on-policingleadership [http://perma.cc/AM8S-9M2L].
35. Ted Gest, Police Reform in U.S.: Some Progress, a Long Way to Go, CRIME REP. (Aug.
19, 2015), http://www.thecrimereport.org/news/articles/2015-08-whither-us-policing [http://per
ma.cc/AZR2-XV68].
36. Id.
37. Id.
38. Id.
39. See Roger Goldman, Rogue Cops Should Not Be Recycled from One Police Department
to the Next, GUARDIAN (May 20, 2015), http://www.theguardian.com/commentisfree/2015/may/
20/rogue-cops-should-not-be-recycled-from-one-police-department-to-the-next [http://perma.cc/7
MB4-C2WL]; Matt Sledge, Ferguson Hired Officer With History of Allegedly Hitting Children,
HUFFINGTON POST (Aug. 19, 2014), http://www.huffingtonpost.com/2014/08/19/ferguson-eddieboyd_n_5682454.html [http://perma.cc/SEW6-9KE4] (explaining the Ferguson Police
Department hired an officer who had resigned from two other departments).

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police departments.40 As was noted in a report commissioned by the DOJ’s
Office of Community Oriented Policing Services (COPS), “The close
proximity and fragmented nature of policing in the St. Louis region coupled
with heavy enforcement by some municipalities in the region has created an
environment of distrust and difficulty for the SLCPD [St. Louis County Police
Department] and the community it serves.”41 The proposed Ferguson-DOJ
consent decree has a provision directed at this concern.42
Some of these municipalities are impoverished and cannot afford to pay
their police officers a decent wage.43 Because these communities do not have
the ability to raise sufficient funds to support city services through sales taxes
(because there are few, if any, businesses in the community) or through real
property taxes (because the value of the property is low), they are forced to
raise revenue by making arrests for minor traffic violations, mostly from their
own residents who have a limited ability to pay.44 And, when they don’t pay,
the fines go up, and they are often arrested and sent to jail.45 In one St. Louis

40. See POLICE EXEC. RESEARCH FORUM, OVERCOMING THE CHALLENGES AND CREATING
REGIONAL APPROACH TO POLICING IN ST. LOUIS CITY AND COUNTY 16–17 (Apr. 30, 2015),
http://www.bettertogetherstl.com/wp-content/uploads/2015/04/PERF-Report-Overcoming-theChallenges.pdf [http://perma.cc/B44X-6SUV]. As of the time of this writing, there are fifty-seven
police departments in St. Louis County (including the County’s). “It used to be higher but the
Norco Police Collaborative absorbed a few.” E-mail from Dave Leipholtz, Dir. of Cmty. Based
Studies, Better Together, to author (Feb. 12, 2016) (on file with author).
41. BLAKE NORTON, EDWIN E. HAMILTON, RICK BRAZIEL, DANIEL LINSKEY & JENNIFER
ZEUNIK, CMTY. ORIENTED POLICING SERVS. (COPS), U.S. DEP’T OF JUSTICE, COLLABORATIVE
REFORM INITIATIVE: AN ASSESSMENT OF THE ST. LOUIS COUNTY POLICE DEPARTMENT 20
(2015), http://ric-zai-inc.com/Publications/cops-p316-pub.pdf [http://perma.cc/ZQW2-PM76].
42. It would require the department to check with the state Peace Officer Standards and
Training Commission (POST), and the National Decertification Index (NDI) before hiring an
officer. Consent Decree, supra note 28, at 66–67.
43. POLICE EXEC. RESEARCH FORUM, supra note 40, at 45–46.
44. Id. at 33.
45. Jeremy Kohler, Jennifer S. Mann & Walker Moskop, Warranted Fear, ST. LOUIS POSTDISPATCH, Sept. 21, 2014, at A1, http://www.stltoday.com/news/local/crime-and-courts/forpeople-livi. . .t-around-st-louis/article_5135fe78-02f4-5ff2-8283-3b7c0b178afc.html [http://per
ma.cc/3XKG-JFFL]. In a recent case in Texas, Sandra Bland was arrested for not signaling when
she changed lanes, was taken to jail, and was found dead in her cell from hanging a few days after
the arrest. Abby Ohlheiser & Abby Phillip, “I Will Light You Up!”: Texas Officer Threatened
Sandra Bland With Taser During Traffic Stop, WASH. POST: MORNING MIX (July 22, 2015),
http://www.washingtonpost.com/news/morning-mix/wp/2015/07/21/much-too-early-to-call-jailcell-hanging-death-of-sandra-bland-suicide-da-says/ [http://perma.cc/6A65-MAD9]. Although the
officer was later indicted for perjury, Mark Berman, Trooper Who Arrested Sandra Bland
Indicted by Grand Jury on Perjury Charge, Will Be Fired, WASH. POST: POST NATION (Jan. 6,
2016), http://www.washingtonpost.com/news/post-nation/wp/2016/01/06/texas-grand-jury-indict
s-trooper-who-arrested-sandra-bland/ [http://perma.cc/2TKV-L2K3], the reason why indictment
for excessive force in cases like these is so difficult is that the Supreme Court, in a five-to-four
decision, has found full custodial arrest for even the most minor of traffic offenses not to be an
A

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County municipality, Pine Lawn, sixty-nine percent of its revenue in 2014
came from court fees and fines.46 The second highest rate was in Edmundson,
where the average annual court fine was $600 per resident.47 This dependence
on fines inevitably leads to arrest quotas for police. As the mayor of
Edmundson wrote to members of the Edmundson Police Department a few
months before the shooting of Michael Brown, “I wish to take this opportunity
to remind you that the tickets you write do add to the revenue on which the
P.D. budget is established and will directly affect pay adjustments at budget
time.”48 (Compare that to the unincorporated part of the county, patrolled by
the St. Louis County Police Department, where the per capita fine collections
for traffic fines and bond forfeiture is twenty-one dollars per resident.)49 After
the mayor’s letter, there were twice as many arrests by the Edmundson Police
Department the next month.50
The hiring of police officers with questionable backgrounds has been a
problem not only in St. Louis County but also nationally.51
Charles Graner, the only person court-martialed for misconduct at Abu
Ghraib prison, had serious allegations of misconduct at his previous job as a
corrections officer in Pennsylvania.52
illegal seizure under the Fourth Amendment. Atwater v. City of Lago Vista, 532 U.S. 318, 323–
24 (2001) (holding the arrest of a motorist for a seatbelt infraction that was not punishable by jail,
hauling her into the station, and requiring her young children to be picked up by a relative was a
legal seizure).
46. Kim Bell & Walker Moskop, Pine Lawn May Contract for Police Coverage, ST. LOUIS
POST-DISPATCH, Sept. 2, 2015, at A6, http://www.stltoday.com/news/local/crime-and-courts/
pine-lawn-may-contract-for-police-coverage/article_d7903f97-956e-5832-ab35-1c5fd69d52
77.html [http://perma.cc/T9PQ-CBG7].
47. Campbell Robertson, Shaila Dewan & Matt Apuzzo, Ferguson Became Symbol of an Ill
Plaguing U.S., N.Y. TIMES, Mar. 8, 2015, at A1, http://www.nytimes.com/2015/03/08/us/fergu
son-became-symbol-but-bias-knows-no-border.html [http://perma.cc/2J6D-N8VK].
48. Brandie Piper, Mayor: Write More Tickets, KSDK (Apr. 24, 2014), http://www.ksdk.
com/story/news/local/2014/04/24/edmundson-write-more-tickets-memo/8115569/ [http://perma.
cc/3F9Q-KDVG].
49. ST. LOUIS POST-DISPATCH, MUNICIPAL COURT STATISTICS: COLLECTIONS, TRAFFIC
CASES AND DISMISSALS (Mar. 14, 2015), http://bloximages.newyork1.vip.townnews.com/stlto
day.com/content/tncms/assets/v3/editorial/e/ba/ebaf6abd-0690-54d7-adbc-36dbd70ce011/5503c7
5f7e08a.pdf.pdf [http://perma.cc/QZS6-F7SR]. The St. Louis Post-Dispatch compiled these
statistics from Census data and information from the Missouri Office of State Courts
Administrator for Fiscal Year 2014. Id.
50. Brandie Piper, Edmundson Officers Write More Traffic Tickets, KSDK (May 7, 2014),
http://www.ksdk.com/story/news/local/2014/05/07/edmundson-ticket-surge/8835243/ [http://per
ma.cc/DNM5-BNJH].
51. E.g., Nomaan Merchant & Matt Sedensky, AP: Broken System Lets Problem Officers
Jump from Job to Job, AP: THE BIG STORY (Nov. 3, 2015), http://bigstory.ap.org/article/4e3d59
7c0b7849a1a59fb4ad90b1cb75/ap-broken-system-lets-problem-officers-jump-job-job [http://per
ma.cc/K6CZ-VTUY] (detailing flaws in state systems that allow bad officers—even those
convicted of sex crimes, including rape—to find new jobs as police officers).

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Tim Loehmann, the Cleveland police officer who shot and killed twelveyear-old Tamir Rice, never had his publicly available records from his
previous department checked by the Cleveland Police Department.53 Had the
Cleveland Police Department checked the records, they would have read a
letter from the deputy chief of the Independence Ohio Police Department that
stated Loehmann was emotionally unprepared to cope with the stresses of the
job and suffered a “dangerous loss of composure” during firearms training,
becoming “distracted” and “weepy.”54 “He could not follow simple directions,
could not communicate clear thoughts nor recollections, and his handgun
performance was dismal.”55 In recommending that Loehmann resign, which he
ultimately did, the deputy chief wrote: “I do not believe time, nor training, will
be able to change or correct the deficiencies.”56 After Rice’s death, the
Cleveland Police Department has belatedly changed their policies to include
checking the records of potential hires.57 Finally, the prosecutor recommended
that the grand jury not indict Loehmann, and the grand jury complied with his
wishes.58
Daniel Pantaleo, the New York Police Department (NYPD) officer who
administered the chokehold that led to the death of Eric Garner in Staten
Island, had been “sued twice in the past for alleged racially motivated
misconduct while on the job.”59 Two black men accused him in 2012 of
subjecting them to an illegal strip search in broad daylight. Pantaleo allegedly

52. T.R. Reid, Guard Convicted in the First Trial from Abu Ghraib, WASH. POST, Jan. 15,
2005, at A1, http://www.washingtonpost.com/wp-dyn/articles/A9343-2005Jan14.html.
53. Adam Ferrise, Cleveland Officer Who Shot Tamir Rice Had “Dismal” Handgun
Performance for Independence Police, CLEVELAND.COM (Dec. 4, 2014), www.cleveland.com/me
tro/index.ssf/2014/12/cleveland_police_officer_who_s.html [http://perma.cc/95WU-JUKQ].
54. Id.; Memo on Cleveland-Area Officer in Tamir Rice Shooting, L.A. TIMES (Dec. 3,
2014), http://documents.latimes.com/memo-tamir-rice-officer-timothy-loehmann/ [http://perma.
cc/QV8Q-5YMH].
55. Id.
56. Id.
57. Ferrise, supra note 53.
58. Timothy Williams & Mitch Smith, Cleveland Officer Will Not Face Charges in Tamir
Rice Shooting Death, N.Y. TIMES, Dec. 29, 2015 at A1, http://www.nytimes.com/2015/12/29/us/
tamir-rice-police-shootiing-cleveland.html [http://perma.cc/JHM3-YHPA].
59. Thomas Barrabi, Who Is Daniel Pantaleo? NYPD Officer Who Killed Eric Garner Was
Accused of Misconduct Before Chokehold Death, INT’L BUS. TIMES (Dec. 3, 2014),
http://www.ibtimes.com/who-daniel-pantaleo-nypd-officer-who-killed-eric-garner-was-accusedmisconduct-1733094 [http://perma.cc/D7VN-NGWX]. By contrast, Bob McCulloch made clear
that he did not give any particular recommendation to the grand jury for Darren Wilson’s
shooting of Michael Brown. See Staff Reports, No Charges Against Darren Wilson, Grand Jury
Decides, ST. LOUIS POST-DISPATCH (Nov. 24, 2014), http://www.stltoday.com/news/local/crimeand-courts/no-charges-against-darren-wilson-grand-jury-decides/article_9afc71c9-a858-5f37aba3-faba3fe12dfe.html [http://perma.cc/Z8FT-Y6UR].

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“tapped” the men’s testicles, claiming it was part of a search for contraband.60
The parties settled this lawsuit in January 2013.61 In another lawsuit, Rylawn
Walker accused several NYPD officers, including Pantaleo, of arresting him
even though he was “committing no crime at the time and was not acting in a
suspicious manner” and of misrepresenting the incident in the police report in
an attempt to justify the arrest.62 Walker’s charges were later dismissed.63
Where a department is pressured to hire many officers in a short period of
time, the results can be disastrous, as occurred in the Albuquerque Police
Department, which “accepted officers from other police forces, even if they
had been disciplined or fired, and it sometimes waived the psychological
exam.”64 According to the training director at the department’s academy, the
new hires were “exhibiting some characteristics that I thought were a little
strange. They were not in charge of their emotions . . . . People were breaking
down into tears.”65
2.

Lack of Training

During the Ferguson protests after Michael Brown’s death, criticism arose
for the way the police dealt with the protesters and the reporters covering the
events,66 for excessive use of force, and for improper use of Department of
Defense-supplied military equipment, among other issues.67 In August 2015,
Governor Jay Nixon issued a directive to the state Peace Officer Standards and
Training Commission (POST) to come up with recommendations within six
months “to improve access to effective and ongoing training in the key areas of
tactical training, fair and impartial policing, and the health and well-being of
officers.”68 The training standards have not been updated since 1996.69

60. Barrabi, supra note 59.
61. Id.
62. Id.
63. Id.
64. Rachel Aviv, Your Son Is Deceased, NEW YORKER, Feb. 2, 2015, at 36, http://www.new
yorker.com/magazine/2015/02/02/son-deceased [http://perma.cc/54NH-VTUP].
65. Id.
66. Mark Berman, Post Writer Charged in St. Louis County, WASH. POST, Aug. 11, 2015, at
A6, http://www.washingtonpost.com/news/post-nation/wp/2015/08/10/washington-post-reportercharged-with-trespassing-interfering-with-a-police-officer/ [http://perma.cc/Y562-4GZN].
Almost a year later, charges were filed against reporters from The Washington Post and The
Huffington Post for trespassing and interfering with a police officer. Id.
67. Radley Balko, After Ferguson, How Should Police Respond to Protests?, WASH. POST:
THE WATCH (Aug. 14, 2014), http://www.washingtonpost.com/news/the-watch/wp/2014/08/14/af
ter-ferguson-how-should-police-respond-to-protests/ [http://perma.cc/GNE7-NQFX].
68. Gov. Nixon Directs Commission to Enhance Law Enforcement Training Standards, OFF.
OF MO. GOVERNOR JAY NIXON (Aug. 6, 2015), http://governor.mo.gov/news/archive/gov-nixondirects-commission-enhance-law-enforcement-training-standards [http://perma.cc/M9AQ-WM
UN]. Since then, Missouri’s POST has updated the Continuing Law Enforcement Education

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Currently, Missouri’s statute regarding basic academy training mandates “at
least thirty hours of training in the investigation and management of cases
involving domestic and family violence.”70 With respect to continuing
education, all peace officers who make traffic stops must receive three hours
training every three years “concerning the prohibition against racial
profiling.”71 There is no specific language addressing training on how to deal
with persons who are mentally handicapped.
With the exception of Hawaii, every state requires that police officers
graduate from an approved training academy.72 The number of hours needed
vary among the states.73 Local departments can require more training than that
mandated by the state. Not every state requires police officers to undergo inservice (continuing) education, a serious shortcoming if the officers graduated
from the academy before issues of racial profiling, domestic violence, dealing
with mentally ill suspects, etc. had surfaced.74
Some states permit a newly hired officer to start working at a police
department without having undergone training; typically, the time frame to get
trained is one year or less from the date the officer begins working. For
example, in Arkansas, a person may work as a police officer for nine months
without going through the thirteen-week police academy training with the
possibility of a three-month extension for extraordinary circumstances, so long
as the officer successfully completes a firearms course and reviews
departmental policies, specifically those covering the use of force, criminal
law, and emergency vehicle operations.75 To prevent such an officer from
working for one department just short of the time limit, leaving that
department, then going to work for another department without training, some

(CLEE) standards. Details of Changes to Continuing Law Enforcement Education (CLEE)
Training Requirements for Missouri Peace Officers, MO. DEP’T PUB. SAFETY, http://dps.mo.gov/
dir/programs/post/clee-training.php [http://perma.cc/EDC2-45LJ] (last visited Feb. 10, 2016).
69. Nixon Plans Announcement About Officer Training Commission, CBS: ST. LOUIS (Aug.
6, 2015), http://stlouis.cbslocal.com/2015/08/06/nixon-plans-announcement-about-officer-train
ing-commission/ [http://perma.cc/X2UB-FVKT].
70. MO. REV. STAT. § 590.040.1 (2010).
71. Id. § 590.050.1.
72. Nick Grube, Want to Be a Cop in Hawaii? No License Needed, HONOLULU CIV. BEAT
(Mar. 12, 2015), http://www.civilbeat.com/2015/03/want-to-be-a-cop-in-hawaii-no-license-need
ed/ [http://perma.cc/X72H-VACB].
73. Training/Academy Life, DISCOVERPOLICING.ORG, http://discoverpolicing.org/what_
does_take/?fa=training_academy_life [http://perma.cc/S5DC-R3L5] (last visited Nov. 5, 2015).
74. Thomas J. Jurkanin, Police Licensing and Revocation, 81 POLICE CHIEF, no. 2, Feb.
2014, at 30, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&arti
cle_id=3266&issue_id=22014 [http://perma.cc/U4BZ-XSQW].
75. 37 Ark. Reg. § 1002 (Dec. 2013).

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states specifically state that the time limit is cumulative.76 The justifications for
permitting a person to work as an officer prior to being trained include the
needs of departments, especially in rural areas, where it is hard to find already
trained officers as well as the problem caused by recent academy graduates not
being available at the time they are needed by a department.77
Another issue that arises in the area of training is that of the use of reserve
(auxiliary) officers.78 These are officers, paid or unpaid, who work less than
full time for a department. Although training requirements vary among the
states—in some states, their training is the same as that of full-time officers; in
others, about half the number of hours; while in Louisiana, no training is
required by the state other than firearm qualifications.79 In terms of their
powers, in some states, they have the same authority as a police officer; in
others, their duties are more limited. Often, the motivation to become a reserve
officer is to be able to carry a weapon.80 In one recent incident, a seventythree-year-old reserve deputy in Tulsa, Robert Bates, was involved in a fatal
shooting during an undercover operation by the sheriff’s Violent Crimes Task
Force.81 He said he had taken an active-shooter firearms training course given
by the Maricopa County, Arizona Sheriff’s Department in Dallas, but

76. MISSISSIPPI PEACE OFFICER STANDARDS & TRAINING: THE BOARD ON LAW
ENFORCEMENT OFFICER STANDARDS AND TRAINING (BLEOST) PROFESSIONAL CERTIFICATION
POLICY AND PROCEDURES MANUAL § 101.04 (2013).
77. Leon Neyfakh, No Experience, No Problem, SLATE (May 8, 2015),
http://www.slate.com/articles/news_and_politics/crime/2015/05/police_training_in_arkansas_and
_indiana_you_can_become_a_cop_without_any.html [http://perma.cc/C3YN-8JVV] (providing
an example of an officer who hadn’t been through the academy and killed a suspect, and who was
prosecuted but acquitted by the jury).
78. VOLUNTEERS IN POLICE SER. PROGRAM, VOLUNTEERS IN POLICE SERVICE ADD VALUE
WHILE BUDGETS DECREASE, http://www.theiacp.org/Portals/0/documents/pdfs/VIPS_police_serv
ice_add_value_while_budgets_decrease.pdf [http://perma.cc/GXZ7-KZV4] (providing a
description of the prevalence of and reasons for the use of reserve officers).
79. Zusha Elinson & Scott Calvert, Badges, Guns—But Not the Same Training, WALL ST. J.,
Apr. 16, 2015, at A3, http://www.wsj.com/articles/some-reserve-officers-get-badges-gunsbut-notthe-same-training-1429141610 [http://perma.cc/ZKP5-YMGF] (quoting Caddo Parish, Louisiana
Sheriff Steve Prator’s criticism of the work-first, train-later approach: “You can’t even cut hair or
work on plumbing in someone’s house without the proper training . . . . Yet you can ride around
and stop people and make life-and-death decisions and not be trained at all.”).
80. Tom Dart, 150 Cops, Population 300: Pay-to-Play Policing, from Tulsa to Kid Rock’s
Town, GUARDIAN (Apr. 17, 2015), http://www.theguardian.com/us-news/2015/apr/17/oakleymichigan-pay-to-play-police [http://perma.cc/Z5ED-N8X7].
81. CNN Wire, Video Released of Deadly Shooting in Tulsa; Police Say Deputy Accidentally
Used Firearm, FOX 13: SALT LAKE CITY (Apr. 12, 2015), http://fox13now.com/2015/04/12/vide
o-released-of-deadly-shooting-in-tulsa-police-say-deputy-accidentally-used-firearm/ [http://perma
.cc/C8RK-TW6J].

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allegations surfaced that he had not.82 As is quite common for reserve officers,
they will make donations to the chief or sheriff—Bates had donated five
vehicles to the Violent Crimes Task Force and was the sheriff’s campaign
manager for his 2012 reelection campaign.83
B.

Criminal Prosecution of Police Officers in State Court

The deaths of Michael Brown, Eric Garner, Tamir Rice, and Walter
Scott—unarmed black men who died at the hands of white police officers—
raised expectations among many citizens that the officers would be quickly
charged, tried, and convicted. But it is quite common for such cases not to be
taken to the grand jury at all. Between 2005 and 2014, there were 213 deaths
from police-involved shootings in Washington state; since 1986, charges were
brought in only one case and the jury acquitted the officer.84 In a study of the
twenty-four police-involved shootings in Memphis between 2009 and mid2015, twenty-two were deemed justifiable and thus were not taken to the grand
jury (the two others were pending investigation at the time of the study).85
Commenting on the lack of charges in Memphis, Loyola Law School Professor
Laurie Levenson, a former federal prosecutor, said: “Police officers are always
given the benefit of the doubt and prosecutors don’t want to file charges
because they don’t want to lose . . . . An officer has to show that they had a
reasonable fear for their own safety or the safety of others.”86

82. Dylan Goforth & Ziva Branstetter, Sources: Supervisors Told to Falsify Reserve
Deputy’s Training Records; Department Announces Internal Review, TULSA WORLD (Apr. 16,
2015), http://www.tulsaworld.com/homepage1/sources-supervisors-told-to-falsify-reserve-depu
ty-s-training-records/article_a6330f10-a9fb-51e3-ab5e-4d97b03c6c04.html [http://perma.cc/GD9
6-77YK].
83. Id. Six months after the shooting, a grand jury indicted the sheriff on two misdemeanor
counts for misconduct and recommended he be removed from office. Lenzy Krehbiel-Burton &
Richard Pérez-Peña, Tulsa Sheriff to Resign Over Killing by Deputy, N.Y. TIMES, Oct. 1, 2015, at
A18, http://www.nytimes.com/2015/10/01/us/tulsa-sheriff-indicted-on-misconduct-charges-inkilling-by-a-deputy.html [http://perma.cc/JUM8-EMLA]. When the indictment was made public,
the lawyer for the sheriff said he would resign. Id.
84. Steve Miletich et al., Shielded by the Law, SEATTLE TIMES (Sept. 26, 2015),
http://projects.seattletimes.com/2015/killed-by-police/ [http://perma.cc/VKL2-768P].
85. Maria Ines Zamudio, MPD Officers Fatally Shoot 24 in Five Years; All Closed Cases
Ruled Justified, COM. APPEAL: INVESTIGATION (Aug. 23, 2015), http://www.commercialappeal.
com/news/investigations/ca-investigation-mpd-officers-have-fatally-shot-24-in-five-years-all-con
cluded-investigations_23290653 [http://perma.cc/T2Z9-7ZHR].
86. Id.; see also Nicholas K. Geranios, Prosecutor: No Charges for Pasco Officers Who
Fatally Shot Rock-Throwing Immigrant, SEATTLE TIMES (Sept. 10, 2015), http://www.seattle
times.com/seattle-news/prosecutor-to-announce-his-charging-decision/ [http://perma.cc/FJ22-Q9
M3] (highlighting a recent case where the prosecutor refused to charge three Pasco, Washington
police officers who shot and killed a rock-throwing Mexican immigrant who was high on meth).

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Even where the prosecutor does take the case to state grand juries, they
rarely indict. For example, in Harris County, Texas, where Houston is located,
in the period from 2004 to 2012, grand juries refused to return indictments in
police-involved shooting cases 288 consecutive times.87 Since Bob McCulloch
took over as prosecutor in St. Louis County in 1991, his office has taken five
officer-involved shootings to grand juries, including the case of Darren
Wilson, and no indictments have been returned.88 In a Washington Post study,
of the thousands of police shootings between 2005 and mid-2015, there have
been only fifty-four indictments.89 The Post study noted that there are
exceptional factors, other than the suspect’s being unarmed, necessary for there
to be an indictment, including: “a victim shot in the back, a video recording of
the incident, incriminating testimony from other officers or allegations of a
cover-up.”90
Since the death of Michael Brown, there has been a dramatic increase in
the number of indictments.91 “More U.S. police officers have been charged
with crimes for deadly on-duty shootings in 2015 than in any year going back a
decade. But not a single officer has been convicted of murder or manslaughter
this year.”92 One reason for the increase in charges and indictments is because
of changes in the system of prosecution of police officers in use of force cases.
California enacted legislation to do away with grand juries altogether for
police-involved shootings, instead of leaving it up to prosecutors whether to
file charges; if charges are filed, judges will hold preliminary hearings to

87. James Pinkerton, Unarmed & Dangerous, HOUS. CHRON., http://www.houstonchroni
cle.com/local/investigations/item/Bulletproof-Part-1-Unarmed-and-Dangerous-24419.php
[http://perma.cc/RV37-54YZ].
88. Heather Cole, Background Check: Looking at McCulloch’s Prosecution History, MO.
LAW. WKLY. (Sept. 8, 2014), http://molawyersmedia.com/2014/09/08/background-check-look
ing-at-mccullochs-prosecution-history/ [http://perma.cc/9EBG-YUYG]. In non-officer involved
shootings, e.g. cases of domestic violence, off-duty crimes, etc., during McCulloch’s tenure, there
have been indictments and successful prosecutions of police officers. Id.
89. Kimberly Kindy & Kimbriell Kelly, Thousands Dead, Few Prosecuted, WASH. POST,
Apr. 12, 2015, at A15, http://www.washingtonpost.com/sf/investigative/2015/04/11/thousandsdead-few-prosecuted/ [http://perma.cc/JE8E-F3LW].
90. Id.
91. Conor Friedersdorf, The Number of Cops Indicted for Murder Spikes Upward,
ATLANTIC (Aug. 19, 2015), http://www.theatlantic.com/politics/archive/2015/08/the-shockingnumber-of-cops-recently-indicted-for-murder/401732/ [http://perma.cc/8A6H-TSXW]; see also
Ian Simpson, Prosecution of U.S. Police for Killings Surges to Highest in Decade, REUTERS (Oct.
26, 2015), http://www.reuters.com/article/us-usa-police-idUSKCN0SK17L20151026 [http://per
ma.cc/BX3P-D2X5] (noting that very few officers are convicted despite an increase in
prosecutions).
92. Zusha Elinson, More Police Face Trials, WALL ST. J., Sept. 24, 2015, at A3,
http://www.wsj.com/articles/more-police-go-to-trial-in-killings-but-convictions-remain-rare-1443
044871 [http://perma.cc/QBC3-VT8Z].

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determine whether there is probable cause to go to trial.93 To address the
problem of a local district attorney’s prosecutor’s “real or perceived conflict of
interest,” Governor Andrew Cuomo issued an order requiring the appointment
of a special prosecutor “to investigate and, if warranted, prosecute” law
enforcement officer in cases “involving the death of unarmed civilians.”94 The
special prosecutor “may” investigate and prosecute in cases where there is a
question of whether the civilian “was armed and dangerous at the time of his or
her death.”95
The Washington Post article noted that even in those few cases that are
brought to trial, “the majority of the officers whose cases have been resolved
have not been convicted.”96 Among the reasons are that the jury’s verdict must
be unanimous;97 officers don’t want to testify against fellow officers; defense
counsel in closing argument will assert that police officers will not
aggressively fight crime if they are subject to second guessing by juries; and
jurors may believe that the fault belongs not with the officer on the street but
with the chief for failure to have better training or supervision. In the view of a
former district attorney who prosecuted police officers, the shootings were

93. Tracey Kaplan, California Bans Grand Juries in Fatal Shootings by Police, MERCURY
NEWS (Aug. 11, 2015), http://www.mercurynews.com/crime-courts/ci_28621966/gov-brownoks-nations-1st-ban-grand-juries [http://perma.cc/B4MJ-2CSZ]; Allie Gross, California Becomes
First State to Ban Grand Juries in Police Shooting Cases, MOTHERJONES.COM (Aug. 13, 2015),
http://www.motherjones.com/politics/2015/08/california-becomes-first-state-ban-grand-juriespolice-shooting-cases [http://perma.cc/VJT7-VNQU].
94. Press Release, N.Y. State Governor Andrew M. Cuomo, Governor Signs Executive
Order Accompanied by Dozens of Community Advocates (July 8, 2015), http://www.gov
ernor.ny.gov/news/governor-cuomo-signs-executive-order-appointing-nys-attorney-general-spe
cial-prosecutor-cases [http://perma.cc/4HXR-ME4J].
95. N.Y. Exec. Order No. 147 (July 8, 2015), http://www.governor.ny.gov/sites/governor.
ny.gov/files/atoms/files/EO147.pdf [http://perma.cc/7TKA-WZLE]. A similar policy was
instituted by the head of the State’s Attorney’s Office in Connecticut. Conn. Chief State’s
Attorney Backs Impartial Prosecutors for Police Shooting Cases, CBS: NEW YORK (Mar. 19,
2015), http://newyork.cbslocal.com/2015/03/19/conn-chief-states-attorney-backs-impartial-prose
cutors-for-police-shooting-cases/ [http://perma.cc/V8SZ-QF7J].
96. Kindy & Kelly, supra note 89; Gross, supra note 93.
97. Mark Berman, Prosecutors Won’t Retry North Carolina Police Officer Who Shot and
Killed Unarmed Man, WASH. POST: POST NATION (Aug. 28, 2015), http://www.washingtonpost.
com/news/post-nation/wp/2015/08/28/prosecutors-wont-retry-north-carolina-police-officer-whoshot-and-killed-unarmed-man/ [http://perma.cc/FS9T-9XKW] (In a recent shooting in Charlotte,
North Carolina of an unarmed black suspect by a white officer, eight jurors voted to convict, four
jurors voted to acquit, and the prosecutor decided not to retry the officer: “In consideration of the
jurors’ comments, the evidence available to the state, and our background in criminal trials, it is
our prosecutors’ unanimous belief a retrial will not yield a different result . . . .”); see also James
B. Stewart, Dewey Jury’s Deadlock Exposes a System’s Flaws, N.Y. TIMES, Nov. 6, 2015, at B1,
http://www.nytimes.com/2015/11/06/business/dewey-jurysdeadlock-exposes-a-systemsflaws.html [http://perma.cc/B3MV-YLRH].

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“almost never premeditated . . . . They arise spontaneously out of a situation,
and most jurors have the idea the cops are out to do the best job they can.”98
Another problem in getting criminal convictions arises where the suspect is
fleeing from the scene of a felony and is shot by the officer; in some states, the
officer will have a defense that he is authorized to use deadly force to stop any
fleeing felon. For example, Missouri law authorizes deadly force if the officer
“reasonably believes” it is necessary in order “to effect the arrest and also
reasonably believes that the person to be arrested has committed or attempted
to commit a felony.”99 Under federal law, established in the 1985 United States
Supreme Court case Tennessee v. Garner, an officer may not use deadly force
to apprehend a suspect unless it is necessary to prevent escape, and the officer
has probable cause to believe that the suspect poses a significant threat of death
or serious physical injury to the officer or others.100 However, the Missouri
Approved Instructions (MAI) incorporated the standard of the Garner case,
raising the question: should instruction on the statutory defense or the MAI be
given to the officer?101 Arguably, as a matter of due process, an officer should
be able to rely on the statute rather than the MAI. Although several bills were
introduced in the 2015 Missouri legislative session that would change current
law, none passed,102 putting Missouri police officers in the untenable position
of being told by the Missouri statute that they may use deadly force to
apprehend any fleeing felon; but, in doing so, the officers would be violating
federal law under 18 U.S.C. § 242.
Another factor that may affect the outcome of a trial is the racial
composition of the jury. The state trial of the four white police officers who
were shown on tape to have beaten Rodney King, an African American, was
moved from Los Angeles to Simi Valley, a largely white suburb in
California.103 There were no blacks on the jury; none of the officers was found

98. Elinson, supra note 92.
99. MO. REV. STAT. § 563.046 (2010).
100. Tennessee v. Garner, 471 U.S. 1, 3 (1985).
101. Letter from Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Def.
and Educ. Fund, Inc., to The Honorable Maura McShane, Twenty-First Judicial Circuit Presiding
Judge 3–5 (Jan. 5, 2015) (on file with the Saint Louis University Law Journal).
102. David A. Lieb, Missouri Lawmakers Quit Early, Failing to Pass Ferguson-Inspired
Changes to Deadly Force Law, U.S. NEWS & WORLD REP. (May 15, 2015), http://www.usnews.
com/news/us/articles/2015/05/15/missouri-legislature-enters-final-day-of-session-in-turmoil
[http://perma.cc/U5UY-4P9M]; Niraj Chokshi, Dozens of Ferguson-Related Reforms Were
Proposed in Missouri. Just One Passed, WASH. POST: GOVBEAT (May 16, 2015),
http://www.washingtonpost.com/blogs/govbeat/wp/2015/05/15/the-missouri-legislature-is-aboutto-end-its-session-having-passed-almost-none-of-the-dozens-of-ferguson-related-bills-proposed/
[http://perma.cc/J4D6-BRXH].
103. Doug Linder, The Trials of Los Angeles Police Officers in Connection With the Beating
of Rodney King, UMKC SCH. L. (2001), http://law2.umkc.edu/faculty/projects/ftrials/lapd/lapdac

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guilty.104 Subsequently, in a federal prosecution of the Rodney King case in
Los Angeles, with two blacks on the jury, two of the four officers were
convicted and two were acquitted.105 Had there been a trial of Darren Wilson
for the killing of Michael Brown in Ferguson, a city that is two-thirds African
American, the case would have been heard in a St. Louis County circuit court
where the population is twenty-three percent African American;106 although,
after peremptory strikes from the pool of jurors, the racial composition of the
jury would in all likelihood be much lower in terms of African Americans.107
The hope of the proponents of the recent changes to the investigation and
prosecution of cases involving police-involved shootings is that not only will
there be more indictments but also that there will be more convictions of police
officers. But, given the difficulty of getting convictions in those cases that do
go to trial under current law, there is a good chance there won’t be a significant
increase in convictions with these measures. And thus one would anticipate
that attention will have to be given to the barriers to getting convictions—
perhaps banning peremptory strikes altogether or changing current state jury
provisions that require unanimous verdicts in criminal cases.108

count.html [http://perma.cc/YNC5-ZAQD] (“The key victory for the defense came in July when
the California Court of Appeals unanimously granted their change of venue motion . . . .”).
104. Id.
105. Id. (“Unlike the Simi Valley jury, the federal jury was racially mixed. Although the
defense made a considerable effort to exclude African-Americans, two blacks were seated as
jurors.”).
106. Quick Facts: Ferguson (city) Missouri, U.S. CENSUS BUREAU, http://quickfacts.census.
gov/qfd/states/29/2923986.html [http://perma.cc/TTA9-WCUK] (last visited Feb. 6, 2016); Quick
Facts: St. Louis County Missouri, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/
29/29189.html [http://perma.cc/C67S-W35A] (last visited Feb. 6, 2016).
107. See Ursula Noye, Blackstrikes: A Study of the Racially Disparate Use of Peremptory
Challenges by the Caddo Parish District Attorney’s Office, REPRIEVE AUSTL. (Aug. 2015),
http://www.blackstrikes.com/resources/Blackstrikes_Caddo_Parish_August_2015.pdf [http://per
ma.cc/RN8B-JNRY] (explaining a recent study of peremptory strikes of blacks from the jury by
prosecutors in Caddo Parish, Louisiana); Kevin Cole, Joy on Race and Jury Selection, CRIMPROF
BLOG (Oct. 15, 2015), http://lawprofessors.typepad.com/crimprof_blog/2015/10/joy-on-race-andjury-selection.html [http://perma.cc/K7E7-83QB]. The United States Supreme Court has held that
peremptory strikes based on race, whether by the prosecution, Batson v. Kentucky, 476 U.S. 79,
88 (1986), or by the defense, Georgia v. McCollum, 505 U.S. 42, 59 (1992), violate the Equal
Protection Clause. See Edward Conlon, The Racial Reality of Policing, WALL ST. J., Sept. 5,
2015, at C1, http://www.wsj.com/articles/the-racial-reality-of-policing-1441390980 [http://perma.
cc/LKB3-X688] (illustrating a former New York City police officer’s view of why some African
American jurors may not vote to convict African American defendants despite clear evidence of
guilt).
108. In Apodaca v. Oregon, the Supreme Court held that the Sixth Amendment requirement
of jury unanimity in criminal cases does not apply to the states. Apodaca v. Oregon, 406 U.S.
404, 411 (1972). In a very recent oral argument, Justice Sotomayor suggested that the decision in
Apodaca might be unconstitutional. Transcript of Oral Argument at 11, Hurst v. Florida, 136 S.

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III. HOW STATES CAN EFFECTIVELY ADDRESS POLICE MISCONDUCT
A.

Pre-Ferguson

Despite the shortcomings of federal, state, and local governments to either
prevent or remedy police misconduct, there have been some successful efforts
in recent years: the enactment of state licensing laws that follow the model of
other professions and occupations. Forty-four states currently have such a
system, typically administered by a state POST.109 Like other state
commissions, POSTs set basic and continuing education requirements,
establish minimum selection standards, often administer an exam like the Bar
Exam, and provide for loss of licensure/decertification if the officer, after a due
process hearing, is found to have violated one of the grounds set forth in the
statute.110
Some states have vigorously exercised this decertification authority.
Georgia, for example, decertified 1727 officers from 2012 to 2014.111
As discussed above, there are often economic pressures on small
departments that don’t have the financial resources to pay for a new recruit’s
training and salary while in training: the officer who was terminated has
successfully passed his state-mandated basic training, he won’t be hired by a
better-paying department given his prior record, and he is immediately
available for work.112 For these reasons and others, it cannot be solely left up
to local departments to decide whom to hire; the ultimate authority must reside
with the state, just as it does for virtually every other profession and
occupation that deals with the public. One of the best examples of how an
effective decertification process can serve the public interest involved the
termination by the Webster Groves Police Department in St. Louis County of
four police officers who were found to have engaged in improper sexual
contact both on and off duty with teenage girls.113 Two of the officers were

Ct. 616 (2016) (No. 14-7505), http://www.supremecourt.gov/oral_arguments/argument_tran
scripts/14-7505_mko1.pdf [http://perma.cc/72GC-ZRMT].
109. Roger L. Goldman, Police Officer Decertification: Promoting Police Professionalism
Through State Licensing and the National Decertification Index, POLICE CHIEF, Nov. 2014, at 40,
40.
110. See Roger L. Goldman, A Model Decertification Law, 32 ST. LOUIS U. PUB. L. REV.
147, 147, 150 (2012) (describing one proposal of what a model law should contain).
111. Shelly Bradbury, Interactive: Chattanooga Police Chief Says Fired Cops Shouldn’t
Work as Officers Again, TIMESFREEPRESS.COM (Apr. 26, 2015), http://www.timesfreepress.com/
news/local/story/2015/apr/26/fletcher-says-fired-cops-shouldnt-work-office/300842/ [http://per
ma.cc/9VXY-UV84].
112. See Goldman, supra note 109, at 41 (offering a particularly egregious example of the
hiring of a clearly unfit officer by another department).
113. Elizabeth Vega, When Officers Quit Under Suspicion, State Wants to Know Details, ST.
LOUIS POST-DISPATCH, Jan. 14, 2001, at C1.

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subsequently hired by neighboring departments, despite all the publicity
surrounding the problems at the first department.114 At the time, Missouri law
permitted an officer to be decertified for “gross misconduct indicating inability
to function as a peace officer;” there was no need for a criminal conviction and
the officers were not prosecuted criminally. The administrative hearing
commissioners found that three of the officers were subject to discipline and
the director of the Department of Public Service revoked their licenses; the
fourth, whose acts were found not to be as serious and were committed off
duty, was not subject to discipline.115
Currently, six states116 (with over twenty-five percent of the total number
of police officers in the United States) have no authority to decertify; thus,
officers committing the kind of misconduct that resulted in decertification in
the Webster Groves cases would be able to be hired not only in those states but
also in the many decertification states that require conviction of a felony or
certain misdemeanors before an officer can be decertified. Every state should
enact a comprehensive law that takes away the ability of unfit officers to
continue in law enforcement, treating police professionals the way they treat
other professionals. If anything, the need for such a system is even more
needed for police officers who have the power to arrest, search, and use deadly
force.
In contrast to the Webster Groves cases where the officers’ prior conduct
was common knowledge, in other cases, a prospective hiring department will
be unaware of the prior misconduct despite contacting the prior department. In
some cases, there will be an agreement between the chief and the officer not to
give a negative recommendation if the officer agrees to resign rather than be
terminated. This occurred several years ago where two officers left under a
cloud from two different departments and applied to work at the West Palm
Beach Police Department. The chief called the prior departments but was not
told about the problems there, and the two officers were later involved in the

114. Id.
115. Goldman & Puro, supra note 7, at 548–49.
116. The six states without such a law are California, Hawaii, Massachusetts, New Jersey,
New York, and Rhode Island. Goldman, supra note 109, at 41 n.1. New Jersey does have a
forfeiture of office provision that in effect does the same thing: it provides that in the case of a
finding by a judge that a police officer (or any person working for the government) has been
convicted of or pled guilty to an offense above a certain degree, the judge must, or for some lesser
offenses may, order the office be forfeited and the person may never again serve in any
governmental position. N.J. STAT. ANN. § 2C:51-2(b)(1) (West 2007); California POST does
have the power to cancel the certificate that was obtained through misrepresentation or fraud, or
that was issued as the result of administrative error on the part of the POST or the employing
agency. CAL. PENAL CODE § 13510.1(e) (West 2004).

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death of a West Palm Beach hitchhiker. They were tried for first-degree
murder but were acquitted.117
The West Palm Beach case points out the need for a way to track law
enforcement officers who have engaged in serious misconduct so that a
department will not unknowingly hire an unfit officer. After the West Palm
Beach incident, there was a bill introduced in Congress that would have
required states to report peace officer and correctional officer license
revocations, but the bill never made it out of committee.118 Approximately
30,000 law enforcement officers in the United States have lost their licenses
since New Mexico first got that power in 1960.119 Although there is no
federally mandated databank, there is a databank, the National Decertification
Index (NDI), which is administered by the International Association of
Directors of Law Enforcement Standards and Training (IADLEST).120 Thirtynine of the forty-four states that have the authority to decertify have submitted
the names of over 19,500 officers to the NDI.121 The executive directors of all
the state POSTs may query the NDI. They may also authorize law enforcement
agencies in their states to access the NDI.
B.

Post-Ferguson Developments

The only post-Ferguson statute enacted in Missouri was Senate Bill 5.122
What is most important about the law is that it focused on the inadequacy of
many of the fifty-eight police departments in St. Louis County and set forth
several minimum standards that must be met; if not met, a court may order, or
the voters of the municipality may vote, to disincorporate.123 The minimum

117. For a discussion of this case, see Goldman & Puro, supra note 7, at 561–62.
118. Law Enforcement and Correctional Officers Employment Registration Act of 1996, H.R.
3263, 104th Cong. (1996); Law Enforcement and Correctional Officers Employment Registration
Act of 1995, S. 484, 104th Cong. (1995).
119. Goldman, supra note 109, at 41; N.M. STAT. ANN. § 29-7-13 (1978).
120. Goldman, supra note 109, at 41. IADLEST is the national association of the executive
directors of state POSTs. Goldman & Puro, supra note 7, at 547–48.
121. E-mail from Michael N. Becar, Exec. Dir., IADLEST, to author (Feb. 12, 2016) (on file
with author) (“[T]o date, there are 20,260 actions reported in the National Decertification Index
by 39 states.”). Based on the list of the thirty-nine states that decertify provided by Mr. Becar and
the list of the six non-certifying states, see supra text in note 116, that leaves five states that
decertify officers without reporting to the NDI: Delaware, Georgia, Louisiana, North Carolina,
and Wisconsin.
122. Senate Bill 5, 2015 Mo. Laws 453, 453–62 (codified in scattered sections of MO. REV.
STAT. ch. 67, 302 & 479 (2010)).
123. MO. REV. STAT. § 67.287.3(2) (2010). A bill was introduced in Arizona in 2013 (H2648)
that would have decertified police departments if more than half the sworn officers had been
decertified in the previous eight years, provided that the state attorney general had found the
problem was systemic and the County Board of Supervisors voted to have the local sheriff take
over the local law enforcement. The law was not enacted. Corrupt Colorado City Cops Subject of

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standards regarding a municipal police department are: the department must be
accredited by the Commission on Accreditation for Law Enforcement
Agencies (CALEA) or the Missouri Police Chiefs Association, or it must
contract for services with an accredited police department; there must be
written policies regarding operation of emergency vehicles, police pursuit, use
of force by officers, and collection and reporting of crime police stop data; and
there must be written general orders for the department.124 All the standards
must be met within three years of the effective date of the law (September 1,
2015) except the standard requiring accreditation, which must be met within
six years.125 Significantly, the requirement of accreditation applies only to
police departments in St. Louis County, not in the rest of the state; the sponsors
realized that by excluding all other counties, the legislators outside St. Louis
County would not face opposition from police departments in their districts.126
Also of importance is the fact that Missouri is the first state to establish
mandatory accreditation of police departments.127
The law also addressed one of the major concerns of the Ferguson
protesters: the reliance on traffic fines to keep the municipalities financially
viable. This part of the law applies to the entire state, not just to St. Louis
County. It provides that the percentage of a municipality’s annual general
operating revenue received from minor traffic violations may not exceed
12.5% (for municipalities in St. Louis County) or 20% (for municipalities in
the rest of the state). Any revenues from fines in excess of those amounts must
be sent to the state director of revenue who will then distribute that money to
the schools in the county where the municipality is located. If the municipality
fails to remit the excess revenue, the law sets forth several procedures to
enforce compliance; and, if these are insufficient, the final step is a vote of the
residents of the municipality to disincorporate. Already twelve St. Louis
County municipalities have sued to prevent enactment of this provision of
Senate Bill 5.128

H2648, ARIZ. DAILY INDEP. (Feb. 21, 2013), http://arizonadailyindependent.com/2013/02/21/cor
rupt-colorado-city-cops-subject-of-h2648/ [http://perma.cc/Q443-H8HS].
124. Senate Bill 5, 2015 Mo. Laws 453, 453–55 (codified in § 67.287).
125. Id.
126. Id. In 2012, Illinois enacted a law that set up the Metro East Police District Commission
to improve policing in four departments with a long history of serious problems in St. Clair
County. 70 ILL. COMP. STAT. 1750/10 (2013).
127. Many states encourage, but do not mandate, that law enforcement agencies become
accredited. E.g., FLA. STAT. § 943.125 (2015).
128. Jeremy Kohler, North County Cities Sue to Block Law That Limits Revenue from Traffic
Cases, ST. LOUIS POST-DISPATCH, Nov. 20, 2015, at A1, http://www.stltoday.com/news/local/
crime-and-courts/north-county-cities-sue-to-block-law-that-limits-revenue/article_842a6e6b-562
b-5045-9458-a5d2901a3ae4.html [http://perma.cc/5SQY-KP9F]; Complaint, Normandy v. Nixon,
15AC-CC00531 (Nov. 19, 2015), http://bloximages.newyork1.vip.townnews.com/stltoday.com/

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It is likely that many of the minimum standards could never be met by
many of the police departments,129 particularly the requirement of becoming
accredited; and, within a day of the law taking effect, one municipality—Pine
Lawn—was considering dissolving its department and contracting with other
departments.130 And, even if a department was able to meet the minimum
standards within the three- or six-year time frame, it will be virtually
impossible for the municipality to stay financially solvent under the 12.5% cap
on traffic fines. But there is a potential loophole: the municipality may shift its
enforcement from traffic to such matters as housing code violations.131
Meanwhile, St. Louis County has enacted an ordinance imposing minimum
standards on municipal police departments.132 As with Senate Bill 5, the
municipalities were quick to mount a legal challenge.133

content/tncms/assets/v3/editorial/f/0a/f0a4d562-ee89-5bd2a035f8ced682832e/564e2b7c13b
02.pdf.pdf [http://perma.cc/7QKP-B49L].
129. For example, smaller departments may find it prohibitively difficult to recruit police
officers. Karen Zamora, Heightened Scrutiny on Police Changing Dynamics of Recruiting,
Retaining Officers, STAR TRIBUNE (Oct. 17, 2015), http://www.startribune.com/heightenedscrutiny-on-police-changing-dynamics-of-recruiting-retaining-officers/333669551/ [http://perma.
cc/VFH5-XPA6]. Several smaller police departments in North County are attempting to survive
the standards through consolidation of their police departments. Christine Byers, A Cooperative
Effort: Small Police Departments Band Together in North St. Louis County, ST. LOUIS POSTDISPATCH, Oct. 26, 2015, at A1, http://www.stltoday.com/news/local/crime-and-courts/acooperative-effort-small-police-departments-band-together-in-north/article_56e2091b-39c2-59b4
-b092-c4c27f975188.html [http://perma.cc/HX2R-N6HD]. County Police Chief Jon Belmar
warns that a consolidated department run by an unaccredited department is not the right solution,
though he is supportive of consolidation if done right. Jon M. Belmar, Opinion, Citizens Deserve
Professional Policing, ST. LOUIS POST-DISPATCH, June 12, 2015, at A15, http://www.stltoday.
com/news/opinion/citizens-deserve-professional-policing/article_f0d02caf-b4b5-5403-82e9-367
aff5635a1.html [http://perma.cc/P4PT-BMA4].
130. Bell & Moskop, supra note 46.
131. Jacob Kirn, Too Small to Survive: Velda City, Beverly Hills, Pine Lawn, ST. LOUIS BUS.
J., Oct. 2–8, 2015, at 10. Since writing this, my predictions have proved all too accurate. Jennifer
S. Mann, Lawsuit Filed Against Pagedale for Ticketing High Grass and Other Code Violations,
ST. LOUIS POST-DISPATCH, Nov. 5, 2015, at A1, http://www.stltoday.com/news/local/crime-andcourts/lawsuit-filed-against-pagedale-for-ticketing-high-grass-and-other/article_35fd1f5b-5a9b-5
b21-97d3-dbaa927294d7.html [http://perma.cc/XQM4-BYRJ].
132. Steve Giegerich, St. Louis County Council Enacts Police Standards Bill, Setting up a
Court Challenge, ST. LOUIS POST-DISPATCH, Dec. 2, 2015, at A1, http://www.stltoday.com/
news/local/crime-and-courts/st-louis-county-council-enacts-police-standards-bill-setting-up/arti
cle_92a41e7d-216f-576c-b000-1f5251454921.html [http://perma.cc/FJ6E-2UJT]; St. Louis
County, Mo., Minimum Standards for Police Departments in St. Louis County (Dec. 1, 2015),
http://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/4/
53/4535fbda-959a-5b39-bb83-67bd8225990a/5627e0f74f771.pdf.pdf [http://perma.cc/ZJK4-DP
42]. And the standards are minimal. For example, one of them requires arrests to be supported by
probable cause in compliance with the Fourth Amendment. Id. at 2. This, no doubt, was a
response to one of the findings in the Department of Justice Ferguson Report that revealed that

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Whereas Missouri’s approach focused on police departments as a whole,
other states’ post-Ferguson reform efforts focused on individual officers.
Connecticut’s law prohibits a police department from hiring an officer who
was previously employed as a police officer by another department in the state
and who “(1) was dismissed for malfeasance or other serious misconduct
calling into question such person’s fitness to serve as a police officer; or (2)
resigned or retired from such officer’s position while under investigation for
such malfeasance or other serious misconduct.”134 The law also requires any
department that is aware of the officer’s dismissal or resignation to inform the
hiring department of that fact.135
Illinois’s approach was to establish a database on officers with a
questionable record and house it in the state POST, the Illinois Law
Enforcement Training and Standards Board. Effective January 1, 2016, the law
requires all law enforcement agencies to notify the Board where there has
been a
[F]inal determination of willful violation of department or agency policy,
official misconduct, or violation of law when: (1) the officer is discharged or
dismissed as a result of the violation; or (2) the officer resigns during the
course of an investigation and after the officer has been served notice that he or
she is under investigation that is based on the commission of a Class 2 or
136
greater felony.

The database contains the officer’s name, the nature of the violation, the reason
for the termination, and any statement from the officer. It is available to the
chief administrative officer or designee of a law enforcement agency but not to
the public.
IV. A ROLE FOR THE FEDERAL GOVERNMENT IN POLICE ACCOUNTABILITY
Given the opposition to state licensing by police unions, the states with
either no or weak licensing laws are not likely going to be able to enact
comprehensive legislation.137 Commentators have noted the success that
unions have had in getting Law Enforcement Officers’ Bills of Rights laws
some officers thought there were circumstances where an arrest without probable cause was
lawful. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, supra note 26, at 15–23.
133. Steve Giegerich, Cities Launch First Challenge to St. Louis County Police Standards
Bill, ST. LOUIS POST-DISPATCH, Dec. 4, 2015, at A1, http://www.stltoday.com/news/local/crimeand-courts/cities-launch-first-challenge-to-st-louis-county-police-standards/article_9eefaafb-e32
c-549f-9823-087bd583aa02.html [http://perma.cc/FK5P-STC5].
134. House Bill No. 7103, § 6(a), Pub. Act No. 15-4 (Conn. 2015) (Effective Oct. 1, 2015).
135. Id. at § 6(b).
136. Illinois Police Training Act, 50 ILL. COMP. STAT. 705/6.2(a) (2016).
137. Goldman & Puro, supra note 7, at 564, 566 (Police unions in California were responsible
for the repeal of that state’s (very limited) law that had permitted a cancellation of certificates (the
equivalent of decertification)).

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enacted as well as similar protections in collective bargaining agreements.
These give police officers facing discipline for misconduct special protections
not available to other public sector employees.138 Noting that these provisions
prevent accountability and transparency, Jonathan Smith, former chief of the
DOJ’s Special Litigation Section in the Civil Rights Division, stated in a recent
New York Times op-ed, “Reform is good for union members—in fact, the
overreach of law enforcement bills of rights and some union contracts have
harmed the very officers the contract rules are intended to protect.”139
The federal government can pressure the states to enact and enforce
reforms through the power of the purse: the DOJ’s COPS office should give
preference for grants to local police departments in states (a) that have an
effective POST program in place; (b) that have a POST program that reports to
the NDI the names of decertified officers; and (c) that have both mandatory
basic and continuing education in such areas as dealing with mentally ill
suspects, addressing racial profiling, and handling domestic violence
situations.
Furthermore, the DOJ can take on a broader role in investigating and
stopping patterns or practices of municipalities in relying on law enforcement
for revenue.140
The United States should also follow the practice that is standard where
healthcare professionals are convicted or plead guilty in federal court to
Medicare or Medicaid fraud.141 When a peace officer is convicted of or pleads
guilty to a civil rights violation in a prosecution by the Criminal Section of the

138. Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An
Analysis of Statutory Law Enforcement Officers’ Bill of Rights, 14 B.U. PUB. INT. L.J. 185, 185
(2005). For a recent example of special treatment in the area of collective bargaining, Governor
Scott Walker of Wisconsin exempted local police, firefighters, and the state patrol from the
collective bargaining restrictions applicable to other public sector unions in 2011 Wisconsin Act
10. Steven J. Allen, Scott Walker vs. the Unions (Part 1 of 2), UNION WATCH (July 10, 2015),
http://unionwatch.org/scott-walker-vs-the-unions-part-1-of-2/ [http://perma.cc/4XJ5-T6UR]. Kate
Levine argues that Law Enforcement Officers’ Bill of Rights (LEOBRs) give suspect police
officers an insider’s advantage in thwarting investigations, which “threatens the legitimacy of the
criminal justice system.” Kate Levine, Police Suspects, 115 COLUM. L. REV. (forthcoming 2016).
139. Jonathan M. Smith, Police Unions Must Not Block Reform, N.Y. TIMES, May 30, 2015,
at A19, http://www.nytimes.com/2015/05/30/opinion/police-unions-must-not-block-reform.html
[http://perma.cc/REM6-ABNN].
140. Ryan J. Reilly, As DOJ Zeros in on Profit-Driven Policing, Advocates Urge Crackdown,
HUFFINGTON POST (Dec. 2, 2015), http://www.huffingtonpost.com/entry/as-doj-zeros-in-on-prof
it-driven-policing-advocates-urge-crackdown_us_565dd88ee4b072e9d1c36495 [http://perma.cc/
2NVG-WGW6].
141. Such convictions entail mandatory reporting to the National Practitioner Data Bank
(NPDB), and the information is available to state licensing boards. NPDB Reporting
Requirements and Query Access, NPDB, http://www.npdb.hrsa.gov/resources/tables/reporting
QueryAccess.jsp [http://perma.cc/RMR3-UETY] (last visited Feb. 6, 2016).

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DOJ’s Civil Rights Division, there should be a requirement that the officer
notify the state licensing agency (if there is one in a particular state) and have
his license revoked, either as part of his plea or as part of the sentence. The
same should occur for peace officers; merely an agreement by the officer not to
serve in law enforcement is insufficient to make sure he can no longer abuse
his position in the same or another state.142 Finally, Congress should consider
adopting the equivalent of the National Practitioner Data Bank (NPDB) for law
enforcement officers. There should first be a study conducted by the
Government Accountability Office (GAO) of whether officers decertified in
one state are currently working in law enforcement in other states. The GAO
did such a study prior to the enactment of the NPDB when it discovered that
one-third of doctors licensed in two states who lost their license in one state
kept their license in the other.143 And the information kept on the federal
database should mirror what is kept on the NPDB, which includes the
following: any malpractice judgment or settlement; loss of staff privileges at a
hospital for more than thirty days; and any adverse action taken by the medical
board. In addition, the law should permit the officer to file a statement, as is
permitted for health practitioners under the NPDB,144 and also in Illinois’s new
database on officers who were terminated or resigned during the course of an
investigation.
Decertification information wouldn’t have disclosed the prior misconduct
of the officers involved in the West Palm Beach case since neither officer was
decertified. The President’s Task Force on 21st Century Policing has taken the
first step in Recommendation 2-15 that DOJ’s COPS officer “should partner
with the International Association of Directors of Law Enforcement Standards
and Training (IADLEST) to expand its National Decertification Index to serve
as the National Register of Decertified Officers with the goal of covering all
agencies within the United States and its territories.”145

142. For a discussion of other ways the DOJ could coordinate efforts with state POSTs, see
Roger L. Goldman, State Revocation of Law Enforcement Officers’ Licenses and Federal
Criminal Prosecution: An Opportunity for Cooperative Federalism, 22 ST. LOUIS U. PUB. L.
REV. 121, 121 (2003).
143. U.S. GEN. ACCOUNTING OFFICE, REPORT TO THE SECRETARY OF HEALTH AND HUMAN
SERVICES, EXPANDED FEDERAL AUTHORITY NEEDED TO PROTECT MEDICARE AND MEDICAID
PATIENTS FROM HEALTH PRACTITIONERS WHO LOSE THEIR LICENSES 6 (1984).
144. BUREAU OF HEALTH WORKFORCE, U.S. DEP’T OF HEALTH & HUMAN SERV., NPDB
GUIDEBOOK F-2 (Apr. 2015), http://www.npdb.hrsa.gov/resources/npdbguidebook.pdf [http://per
ma.cc/M3QA-XDLG].
145. PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, FINAL REPORT OF THE
PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING 29 (2015), http://www.cops.usdoj.gov/
pdf/taskforce/TaskForce_FinalReport.pdf [http://perma.cc/E6P5-QN4B].

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CONCLUSION
A common refrain from those opposed to major reform of policing is that
the system is fine, we just need to get rid of the bad—sometimes rotten—
apples. In fact, as discussed above, current policies make it inevitable that the
bad apples will continue to work in law enforcement. Furthermore, rotten
apples can spoil the entire barrel.146 But the events in Ferguson and elsewhere
present an opportunity to bring about major changes, just as the events
surrounding the acquittal of the officers involved in the beating of Rodney
King led to Congress’s enactment of § 14141. As Rachel Harmon points out,
the kind of “systemic” policing failures we are seeing requires “proactive and
systematic”—as opposed to “reactive and haphazard”—reforms.147 The
passage of Senate Bill 5 in Missouri is an example of what can be
accomplished by bringing together groups who are normally on opposite sides:
most law enforcement members want to be professionals and most people
interested in the protection of citizens’ civil rights and civil liberties understand
the need for good policing. Increasing selection standards, improving training,
and holding police accountable for their misconduct will help gain the respect
of the community, and thereby will make the police more effective. Another
lesson from Ferguson is that serious thought should be given to close down
police departments that cannot meet minimum standards of performance.
Many of those departments were small and financially strapped. Across the
United States, almost fifty percent of law enforcement agencies have fewer
than ten sworn officers.148 It may be that the United States should learn from

146. Seth Stoughton, Geoffrey Alpert & Jeff Noble, Why Police Need Constructive Criticism,
ATLANTIC (Dec. 23, 2015), http://www.theatlantic.com/politics/archive/2015/12/officer-portermistrial-police-culture/421656/ [http://perma.cc/63RL-6V7K] (“The failure to engage in behavior
reviews and the refusal to have these conversations sends the wrong message: that poor behavior
or outright misconduct is tolerated or encouraged. Police agencies may sometimes blame a ‘rogue
cop’ or a ‘bad apple’ for misconduct, but as Barbara Armacost has observed, sometimes apples go
bad because the barrel—the culture of the police agency itself—is defective. Many reports on
policing—the Wickersham Commission that investigated policing failures during Prohibition, the
Knapp and Mollen Commissions that investigated corruption at the NYPD, the Christopher
Commission that investigated excessive force in the LAPD, and so on—have recognized that
misconduct flourishes in environments that fail to address it. Ignoring or individualizing
problematic attitudes and actions is an all-too-common feature of a culture that resists secondguessing and peer correction, but doing so is the functional equivalent of tacit approval.”).
147. Harmon, supra note 16, at 2, 5.
148. BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF
STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2008 2 (July 2011), http://www.bjs.gov/
content/pub/pdf/csllea08.pdf [http://perma.cc/BD4Q-ZJB2] (In 2008, there were 17,985 state and
local law enforcement agencies employing at least one full-time officer or the equivalent in parttime officers. The total included 12,501 local police departments, 3063 sheriffs’ offices, 50
primary state law enforcement agencies, 1733 special jurisdiction agencies, and 638 other
agencies, primarily county constable offices in Texas). In that same year, there were seventy-

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other countries where the norm is to have larger departments rather than
thousands of departments of fewer than ten officers.149

three federal law enforcement agencies with approximately 120,000 full-time officers. BRIAN A.
REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL LAW
ENFORCEMENT OFFICERS, 2008 1 (June 2012), http://www.bjs.gov/content/pub/pdf/fleo08.pdf
[http://perma.cc/R75P-T7TU].
149. Daniel Lazare, Why US Police Are Out of Control, CONSORTIUMNEWS.COM (Aug. 20,
2015), http://consortiumnews.com/2015/08/20/why-us-police-are-out-of-control/ [http://perma.cc/
969R-W2SE] (“So what is the real reason that America is off the charts when it comes to police
shootings? The most important explanation is one that almost no one notices: fragmentation.
Britain, for example, has some 50-odd separate police forces, the Metropolitan Police Service
covering greater London, a slew of regional police forces covering the rest of the country, plus a
Serious Organized Crime Agency to deal with higher-level offenses. Germany has a federal
police force plus one police department for each of the sixteen länder, or states, while France,
thanks to the Jacobin tradition of centralization, somehow makes do with just three police forces
in all: the National Police, the National Gendarmerie, and the Municipal Police, only half of
whom are armed. Australia meanwhile has eight police forces, New Zealand has just one, while
Canada, somewhat unusually, has more than 200, including two dozen or more among Native
American tribes.”).