AP Photo/Elise Amendola
David Silva died during an arrest in Bakersfield, California on the night of May 8. The Kern County sheriff's department contends that the 33-year-old was drunk and uncooperative and fought back during the arrest. The sheriff's deputies on the scene also fought back during the arrest-using unreasonable and excessive force, as the civil-rights lawsuit Silva's family filed charges-allegedly beating Silva with batons while he lay on the ground.
One of the accused deputies has the same name as one charged in the 2010 beating of a man that resulted in a $4.5-million court judgment against Kern County. County sheriff Donny Youngblood declined to tell The Los Angeles Times whether he is the same officer.
If the deputy is one and the same and the lawsuit succeeds, the circumstances will fit an emerging pattern in the state-police departments retaining cops with questionable records. In October 2011, two San Joaquin Valley TV stations revealed that several officers with the McFarland police department had trouble in previous police jobs. One was fired for getting into a drunk-driving accident and totaling his police car. Another was let go for filing a fraudulent insurance claim. A third was dismissed for lying to the FBI during an investigation into his suspected possession of child porn. These are not minor infractions.
In 2008, the city of Maywood hired an interim chief who pleaded no contest to charging for bogus overtime during a previous stint with the Los Angeles Police Department. A 2007 investigation by The Los Angeles Times found that at least a third of the officers on Maywood's force had either left other police jobs under a dark cloud or had brushes with the law while working for the city.
The fact that all these episodes are set in California may be no accident. It's one of a few states-along with Massachusetts, Rhode Island, New York, and Hawaii-that don't have authority to take away a police officer's certificate or license to continue serving. (New Jersey technically also doesn't have revocation authority, but a state law prohibits public employees convicted of certain offenses from ever holding another public office, which effectively revokes an officer's license to serve if convicted.)
For most of American history, local police chiefs have controlled the hiring and firing of their officers, notes Roger Goldman, leading expert on police-licensing laws, in a 2003 article in the St. Louis University Public Law Review. But in the 1950s, states started treating law enforcement like a profession and took responsibility for training cops and setting minimum standards for entry to the field. In 1960, New Mexico became the first state to authorize the revocation of police officer licenses in cases of serious misconduct. Today in 44 states, a state agency-usually known as a Peace Officer Standards and Training Commission (POST)-trains incoming cops, sets minimum standards that qualify them to serve (like being a citizen and meeting physical requirements), and can revoke an officer's license for serious misbehavior. Depending on the state, disqualifiers range from a felony conviction to behaviors that aren't necessarily criminal, like having sex on the job or lying during an internal affairs investigation.
That transformation over the last 50 years in who decides which cops should be kept off the beat-states instead of localities-might appear to be a technical change. It's anything but.
All local departments do background checks on new hires, but the quality of those investigations can vary wildly, especially when small or financially strapped departments are involved. "A background check is only as good as the person doing it and how deep they want to go," says Eriks Gabliks, director of Oregon's POST agency. Thorough background checks can be particularly hard when an applicant has resigned quietly from their previous police job in lieu of a termination or investigation. In those cases, the department they left might not be willing or able to share information about the circumstances.
Even if a background check turns up past rogue behavior, a small department may go ahead anyway. Such agencies usually are in poor communities that can't afford high salaries, notes Goldman, who has worked for 30 years promoting better policing standards and stronger revocation authority. Given the opportunity to hire a licensed officer who can start immediately and for whom the hiring agency doesn't need to pay training costs, it may decide to ignore their history.
These factors make the ability to take away an officer's license or certificate critical to stopping repeat offenders. California has gone the other direction. Until 2003, the state's POST had the authority to cancel an officer's certificate if they were found guilty of committing a felony or certain misdemeanors-unlawful sexual behavior, dishonesty associated with their official duties, or theft. But ten years ago, police unions and police chief associations successfully lobbied the legislature and Governor Gray Davis to dramatically narrow the grounds for the POST to cancel a certificate. They did so presumably to wrest back hiring and firing decisions from the state and put it back in the hands of local chiefs and union representatives. (The chief union lobbyist for the bill did not return calls for comment, nor did several other California police unions and chiefs' associations contacted for this story.)
Today, a California officer's certificate can be canceled only in cases involving mistakes or misrepresentation during the certification process, though officers convicted of most felonies still are prohibited from serving. In 2011, that resulted in California's POST canceling certificates for all of five cops-a rate of .06 per thousand officers, according to data from a May article in Police Quarterly by researchers Loren Atherley and Matthew Hickman.
Contrast that with neighboring Oregon, where the 2011 decertification rate was more than a hundred times higher, at about seven per thousand. As in California, a felony conviction in Oregon brings mandatory revocation of an officer's license. But Oregon also conducts "discretionary revocations" for behavior that doesn't necessarily rise to the level of a crime but involves "moral fitness," says Gabliks. Recent cases in which officers lost their certificates included one who had sex while on duty, another who lied during an internal investigation, and a third who crashed a police car while driving drunk and then left the scene, leaving personal information about murder trial witnesses in the car. The misconduct has to be serious-"It's not the officer that didn't have their shoes shined when they came to work," says Gabliks.
Those discretionary cases are funneled through a peer review process, and evaluated by a panel made up of police command staff and line officers, who make a recommendation to a similarly composed larger board that can approve or disapprove revocation, says Gabliks.
The head of Oregon's police officers' union mostly agrees that the system works, with one caveat. Darrin Phillips of the Oregon State Police Officers Association says he'd like to see the state add a process that allows an officer to appeal the board's decision to an external entity like an arbitrator. "In most cases, I fully agree with the board's decision," says Phillips. "There's just that one out of 100 where I say, gee I wish we could have an impartial review of this."
Similarly, next-door Washington state has a strong system for sharing information about potential bad-apple cops. There, when an officer leaves or is fired, their employer has to notify the state's POST and indicate whether it's aware of "disqualifying misconduct" that could lead to that officer's decertification. The POST can investigate and ultimately decertify if such behavior is proven. Goldman applauds Arizona's system, which allows decertification not just for egregious conduct but ethical violations too-the state can revoke an officer's certification not just for acts of that involve moral fitness like drinking on the job but for any conduct that would "disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession."
But a former executive director of California's POST vigorously defends keeping hiring and firing at the local level. Putting the decision in the hands of a statewide body creates divisiveness-local police chiefs and sheriffs need discretion to make firing decisions since they're the ones who best know their circumstances, says Paul Cappitelli, who served 29 years in the San Bernardino County Sheriff's Department. Even if line officers are represented on a state review panel, "it's a political process no matter how you shape it," he says. He also disputes that Atherley and Hickman's numbers have any relevance to California. The state doesn't need to cancel certificates, he contends, because its training program and standards for entering the profession are among the best in the country-rogue officers are kept out of the force from the get-go. When Cappitelli was POST director, he says POST directors from other states told him privately that they wished they'd kept the system California has.
Still, it's not clear that California cops feel local control gives them more due process or greater protection from politics. After the killing spree in February by fired Los Angeles Police Department officer Christopher Dorner, 40 former LAPD officers who claimed they were wrongly dismissed submitted requests to the department to have their cases reviewed, according to the Times. An attorney for a Los Angeles police union told the paper that the department's disciplinary hearings are stacked against officers.
Wilfred Hill of the Rhode Island State Police- another state without revocation-says its small size makes a decertification system less important. The state's 35 police chiefs meet regularly to share information, including about potential hires, he says. But he concedes that a system for tracking officers who resign for misconduct would be a good thing: "If we had the funding and the personnel to do it, absolutely."
One solution that has addressed the concerns of line officers and unions about fairness or politics is building flexibility into the decertification process. That's exactly what happened in Florida, which has had revocation authority since 1980, says Joe White, an attorney with the Florida Department of Law Enforcement. Initially the state had only authority to take away a license permanently-today, depending on the level of misconduct, it can do everything from issue a letter of reprimand to temporarily suspend an officer's license to permanently revoke it. That change helped make state revocation authority more palatable, he says.
Just having decertification authority isn't by itself enough to change the quality of policing-in states that can revoke licenses, the rules governing decertification have to be strong enough to make a difference. Goldman says that in about a third of the states that do have the ability to strip officers' licenses, their authority is limited to cases in which officers are criminally convicted. That excludes cases of misconduct that are never prosecuted or may not rise to the level of a crime, like filling out false timesheets. In other states with revocation authority, local chiefs don't consistently report the names of officers dismissed for misconduct to the state's POST-in ten states, such reporting isn't even required, note Hickman and Atherley. And no comprehensive national system prevents cops whose licenses have been revoked from crossing state lines to get a job-only 34 states contribute to the National Decertification Index, which holds the names of officers nationwide who have lost their certification.
Even so, one advocate says giving states the control to yank the licenses of repeat offenders can only improve policing. "California maintains a procedure for licensing and complaining about professions ranging from doctors and lawyers to contractors and barbers," says Peter Bibring, staff attorney at the ACLU of Southern California. "It's certainly more important to have faith in the job history of a police officer than a barber. There's no reason the state shouldn't have a licensing scheme to ensure that misconduct that's proven when an officer serves in one department is known to other departments that may hire that officer."
And at a time when towns and cities are declaring bankruptcy, it also could save money. In New York City, for example, the number of lawsuits against the police department is surging-the opposite of what's happening to other city agencies, according to a June report by city comptroller John Liu. The number of claims against the department has doubled in the last five fiscal years to almost 10,000. Such claims in fiscal 2012 cost the city $152 million.
Back in California, the city of Vallejo, which emerged from bankruptcy in 2012, paid out $4.2 million that year to settle a lawsuit in a case of alleged police brutality by two officers. The officers don't work for the city anymore, according to the San Francisco Chronicle-they're now on the beat in nearby Richmond.
