(a) Agencies should recruit and hire individuals who reflect a spectrum of perspectives and experiences, reflect the diversity of the communities they serve, and are well-suited to sound policing.
(b) Agencies should undertake proactive efforts to hire only individuals who are suitable for sound policing and to avoid hiring officers who are unsuitable because they have been terminated from or left previous positions due to misconduct.
Comment:
Recruitment and hiring are linked inextricably to achieving and maintaining sound policing. Officers who are well-suited for sound policing are most likely to rise to its challenges, and a policing agency comprised of officers willing and able to engage in sound policing collectively can create and perpetuate a culture that reinforces it. Once hired, however, it generally is difficult to terminate officers from employment, and officers who engage in unsound policing may do harm before they are terminated. Agencies thus should not count on discovering and terminating officers who are ill-suited for sound policing after they have been hired. Instead, agencies should view a candidate’s propensity for sound policing as central to the candidate’s suitability for hiring as well as the officer’s ultimate retention. This requires both hiring officers who are most able and willing to engage in sound policing and earn the community’s trust and screening out officers who are unlikely to do so.
a. Selecting and retaining candidates well-suited to sound policing. Agencies should ensure that institutional incentives and recruitment processes attract, select, and retain individuals willing and able to practice sound policing. This requires that agencies: (1) know which personal qualities and experiences are associated with sound policing, and (2) structure recruitment, hiring, and retention to identify, attract, and retain those candidates. Unfortunately, at present, research about which traits and skills promote sound policing and how to identify those traits in candidates is largely unavailable. See § 14.11 (addressing research needs around policing). Nonetheless, some traits and skills are tied closely to what sound policing demands of officers. Agencies should seek out and work to retain individuals with those traits.
- 1. Communication skills. Nearly every call to which an officer responds, and every interaction that an officer initiates, can be improved by effective communication skills. Avoiding and defusing conflict requires effective communication skills, as does policing in a manner that is procedurally just. Although communication skills can, and should, be taught and practiced, officers naturally adept at good communication may find it easier to promote sound policing.
- 2. Self-regulation. Some individuals have a better ability than others to control their own behavior and emotions, that is, to self-regulate, even in challenging situations and environments. Sound policing often demands this skill, and officers with it appear to be less likely to commit misconduct and more likely to de-escalate situations. As with communication skills, self-regulation can be taught and honed through practice, but some people find it easier than others, and policing agencies would do well to seek out those people.
- 3. Moral courage. Sound policing requires moral courage, that is, the willingness to act ethically and altruistically, even when doing so may lead others to react negatively. Only officers with moral courage can be expected, for example, to intervene to prevent misconduct, report harmful misconduct that is ongoing, and speak out against dangerous orders or policies. Although moral courage can be taught, see § 13.03 (discussing importance of training in influencing officer behavior and active bystandership), and institutional dynamics can reinforce (or undermine) its exercise, individuals who come to policing prone to act ethically and altruistically may help create and maintain a culture of sound policing within an agency, while those with weaker moral courage may undermine it.
- 4. Values of fairness and empathy. Sound policing—including treating people in a way that engenders trust and intervening to prevent others from being harmed—requires acting fairly and understanding the perspectives of others. Those who are committed to the values of fairness and empathy may be most likely to exhibit behavior consistent with these values, and agencies should seek and hire candidates with these values.
b. Diversity and inclusion. Each agency should ensure that its workforce at all levels varies in terms of life experience, race, sex, ethnicity, national origin, religion, socioeconomic background, sexual orientation, and gender identity, among other qualities. Agency diversity not only contributes to equal employment opportunity, it also may advance sound policing and agency accountability. For example, diversity in policing agencies may alter the internal dynamics of those agencies, making the agencies less insular, and thereby discouraging the “blue wall” of silence that, in many agencies, makes accountability and sound policing difficult to achieve.
Notwithstanding these potential benefits of a diverse agency, research and experience make clear that a diverse workforce does not lead inevitably to sound policing. Even officers who “look like” community members may commit misconduct. Moreover, hiring diverse officers does not ensure that they will have influence in an agency. To increase the likelihood that diversity positively impacts officer conduct and agency accountability, agencies should institutionalize inclusion; that is, they should adopt behaviors and social norms that make all officers and employees feel welcome and their contributions valued, regardless of differences in life experience, perspective, or a variety of demographic features.
c. Screening out candidates ill-suited for sound policing. Policing agencies should establish and adhere closely to background-investigation and screening protocols in order to do their best not to not hire officers whose conduct or other traits indicate unsuitability for sound policing. The investigation and screening protocols an agency uses should include: a validated pre-employment psychological evaluation that assesses factors relevant to sound policing; a check of relevant records such as police records, military history, and education; a review of personnel records from the candidate’s previous employment; and a check of the National Decertification Index (see § 14.14) to determine whether the individual previously has been decertified as a law-enforcement officer. There should be a strong presumption against hiring officers who have been terminated or otherwise left previous employment due to misconduct, as discussed in § 13.07. Agencies never should hire officers: who have a history of engaging in racist speech or behavior; are known to belong to hate groups, including white-supremacist or white-nationalist groups; or who otherwise support ideologies incompatible with fair and objective policing. Agencies also should support other agencies’ efforts to avoid hiring unsuitable officers by providing them upon request with complete information about their employees’ and former employees’ work history, including complaint and disciplinary history, to the extent allowable by law.
Although recruiting suitable officers can be challenging, agencies should resist lowering hiring standards in order to increase the pool of “eligible” police candidates. Reduced education standards, lower scores on pre-employment psychological tests and entrance exams, and more forgiving background checks have been associated with deficient performance by officers, as has hiring candidates with serious criminal histories. Lowered hiring standards may result in a net negative impact on public safety and police accountability, even when they succeed in increasing the number of officers in the agency.
At the same time, agencies should reconsider recruitment and hiring criteria that may screen out candidates who are suitable for sound policing. For example, physical criteria may limit the number of female candidates, but to the extent that such criteria are unrelated to effective performance and rarely are used for retention decisions, their necessity and utility should be questioned. It is also well-documented that Black and Latinx individuals are arrested at much higher rates than members of other racial and ethnic groups, especially for certain minor crimes. Therefore, in developing/devising/determining their methods for screening candidates, agencies should consider whether arrest histories for certain minors crimes actually indicate that candidates are unlikely to engage in sound policing. Agencies can and should evaluate their standards for hiring and retention to ensure those criteria are consistent with community needs and priorities as well as the best available research findings. Agencies also should examine the effect that civil-service rules have on hiring and retaining officers. Although such rules can promote merit-based employment decisions in government agencies, those rules may require tailoring to the unique circumstances of policing; agencies can help bring to light areas in which modifications would be important to sound policing.
d. Retaining a workforce suited to sound policing. Agencies not only should structure their recruitment and hiring practices to attract candidates suited for sound policing, they should make efforts to retain employees who have exhibited those characteristics. To do so, agencies should ensure that all of their systems incentivize and reward sound policing (as discussed elsewhere in this Chapter), including their systems for: evaluating individuals’ performances; assigning and selecting individuals for promotion; training; supervising; and holding individuals accountable. Similarly, agencies should refuse to tolerate instances or a culture of prejudice or unlawful discriminatory behavior among officers and employees. Toward this end, agencies should adopt policies, training, and disciplinary practices that guide officers and employees, their supervisors, and misconduct investigators on permissible speech and expressive conduct.
Reporters’ Notes
1. Challenge of recruiting. The fundamental recruiting challenge for agencies and the communities they serve is two-fold. First, the complexity and breadth of policing requires officers to have traits and skills—not all of which are easily taught—if they are to engage in sound policing. Second, the sheer number of police officers in the United States (over 700,000 currently) makes it difficult for agencies to identify and retain sufficient numbers of diverse individuals with those traits and skills. The purpose of this Section is to emphasize that, in light of this challenge, agencies should work intentionally to recruit, hire, and retain officers who will practice and promote sound policing. This requires that agencies identify the skills and traits associated with sound policing; develop systems to identify, attract, and select candidates with those attributes; and put in place systems that include, incentivize, and reward those individuals so that they remain with the agency.
2. Identifying traits associated with sound policing, and the individuals who possess those traits. Traditionally, policing agencies have used hiring criteria such as physical ability and height, military service, and a lack of criminal history or drug use, to determine eligibility and desirability of police recruits. See Robert E. Cochrane, Robert P. Tett & Leon Vandecreek, Psychological Testing and the Selection of Police Officers: A National Survey, 30 Crim. Just. & Behav. 511, 519 (2009) (finding that more than 90 percent of police agencies used background investigations, medical exams, and psychological assessments as part of the hiring process, and that more than half of agencies utilized drug-testing and physical-fitness exams).
In recent years, researchers and agencies have recognized that, although some of these criteria and selection processes serve to “screen out” poorly suited police candidates, they do little to identify individuals who might be particularly well-suited for the unique challenges of policing. Jorge G. Varela et al., Personality Testing in Law Enforcement Employment Settings: An Analytic Review, 31 Crim. Just. & Behav. 649, 650-654 (2004) (finding that most agencies attempt to identify particular character traits or personalities that are predictive of undesirable performance criteria such as absenteeism, tardiness, and citizen complaints rather than trying to identify traits like patience, conscientiousness, and high emotional intelligence that may be associated with sound policing). Moreover, some of these criteria and selection processes actually may inhibit hiring individuals who are well-suited for sound policing. For example, physical-ability requirements disproportionately disqualify female officer candidates, although the requirements have no demonstrated bearing on effective policing, and female police candidates often appear at least equally suited to be police officers when other criteria are prioritized. See, e.g., Kimberly A. Lonsway, Tearing Down the Wall: Problems With Consistency, Validity, and Adverse Impact of Physical Agility Testing in Police Selection,6 Police Q. 237, 266 (2003) (explaining that some agencies have eliminated entry-level physical-ability testing without sacrificing the quality of candidates selected); Nat’l Ctr. for Women & Policing, Recruiting & Retaining Women: A Self-Assessment Guide for Law Enforcement 23 (noting that there are no documented cases of a female officer’s lack of strength leading to negative outcomes). Disqualifying factors such as nonresidency, immigration status, body-art restrictions, or past marijuana use may decrease the size and diversity of the applicant pool with little or no benefit for the community. Jeremy M. Wilson, Erin Dalton, Charles Scheer & Clifford A. Grammich, RAND Ctr. for Quality Policing, Police Recruitment and Retention for the New Millennium: The State of Knowledge 14-15 (2010) (explaining how policies against prior use of marijuana and credit-card debt reduce the pool of potential applicants).
Although more social science research could clarify the characteristics agencies should seek in officers, there is broad agreement about the desirability of some police candidate traits, including those discussed in the Comments to this Section. See Greg Ridgeway et al., RAND Ctr. for Quality Policing, Strategies for Improving Officer Recruitment in the San Diego Police Department 9-31 (2008) (discussing evidence supporting best practices in police hiring and retention); see also Gary W. Cordner, Police Administration 54, 160-161 (9thed. 2016) (including integrity; service orientation; empathy; communication and human-relations skills; good judgment and problem-solving skills as important policing skills); Jeremy M. Wilson et al., supra, at 17 (officers must be able to “communicate, collaborate, and interact with a diverse set of stakeholders” and be “culturally competent” among other skills and traits.); see generally Nat’l Inst. of Just., Women in Policing: Breaking Barriers and Blazing a Path (2019) (setting out a research agenda regarding women in policing, including both the impact of women on policing and what experiences and skills are necessary to have a successful policing career).
How an officer communicates, for instance, can affect how an individual perceives the legitimacy and fairness of a police interaction. See, e.g., Megan Quattlebaum, Tracey Meares & Tom Tyler, The Just. Collaboratory, Principles of Procedurally Just Policing40 (2018) (noting as principle 29 that “[o]fficers should endeavor to communicate effectively with the community and with suspects in a way that promotes the tenets of procedural justice”). In addition, officers who are more adept at verbal communication may be less inclined, and have less need, to resort to physical coercion. See, e.g., Scott Wolfe, Jeff Rojek, Kyle McLean & Geoffrey Alpert, Social Interaction Training to Reduce Police Use of Force, 687 ANNALS Am. Acad. Pol. & Soc. Sci. 124, 126-27 (2020). Research similarly has shown that low self-regulation is a significant predictor of police misconduct. Christopher M. Donner & Wesley G. Jennings, Low Self-Control and Police Deviance: Applying Gottfredson and Hirschi’s General Theory to Officer Misconduct, 17 Police Q. 203, 214-215 (2014) (finding level of self-control to be statistically associated with misconduct while other factors considered for policing, like education level, are not). Additionally, self-regulation has obvious implications for an officer’s ability to de-escalate tense situations, avoid the need for force, or cease to use force at the earliest possible moment.
Moral courage can make an officer more likely to intervene to help others, to intervene to prevent harm, or to report misconduct by another officer, even when some of his peers may react badly to his or her actions. See Ervin Staub, The Roots of Goodness and Resistance to Evil: Inclusive Caring, Moral Courage, Altruism Born of Suffering, Active Bystandership and Heroism (2015). Research indicates that high self-esteem and self-confidence are good predictors of moral courage, particular when these traits are combined with a sense of self-efficacy or agency, that is, a sense that one’s actions will make a difference. See Catherine A. Sanderson, Why We Act: Turning Bystanders into Moral Rebels 174-175 (2020).
Finally, officers who value fairness and empathy may be more likely to engage in procedurally just policing, see, e.g., Nat’l Rsch. Council, Fairness and Effectiveness in Policing: The Evidence 130 (Wesley Skogan & Kathleen Frydl eds., 2004), and to intervene to prevent unjustified harm to a member of the public, see Sanderson, 101-103, 108-109, 183-189; C. Daniel Batson et al., Is Empathic Emotion a Source of Altruistic Motivation?, 40J. Personality & Soc. Psych. 290, 302 (1981). Although some pre-employment hiring processes, such as psychological evaluations, take into consideration fairness and empathy, they may not weight them as warranted.
3. Diversity and inclusion. Beyond ensuring that individual officers are well-suited to sound policing, creating a diverse and inclusive workforce—one in which people are different from each other and the contributions of all are valued—can help promote sound policing. Research has shown, for example, that police departments with a certain level of diversity improve officer behavior. See, e.g., Joscha Legewie & Jeffrey Fagan, Group Threat, Police Officer Diversity and the Deadly Use of Police Force 9-12 (Colum. L. Sch. Pub. L. Working Paper, Paper No. 14-512, 2016) (arguing that a racially diverse police force reduces police shootings of members of the public and mitigates perceptions of group threat among officers). Moreover, Black and Latinx officers are more likely than white officers to empathize with Black and Latinx culture and concerns. They may also act in a less-biased manner towards Black and Latinx members of the public, although findings on this point are mixed. See, e.g., Billy R. Close & Patrick L. Mason, Searching for Efficient Enforcement: Officer Characteristics and Racially Biased Policing, 3 Rev. L. & Econ.263, 315 (2007) (finding that white officers are more likely than African-American and Latino colleagues to lower the guilt signal required for police suspicion when stopping African-American and Latino drivers); Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson & April Pattavina, Stops and Stares: Street Stops, Surveillance, and Race in the New Policing, 43 Fordham Urb. L.J. 539, 610 (2016) (finding that, relative to Black counterparts, white police officers are more likely to frisk/search subjects of all races); Ivan Y. Sun & Brian K. Payne, Racial Differences in Resolving Conflicts: A Comparison between Black and White Police Officers, 50 Crime & Delinq. 516, 531, 534 (2004) (finding that Black officers are more coercive than their white counterparts in responding to conflicts but are also more likely to conduct supportive activities in predominantly Black neighborhoods); Bocar A. Ba, Dean Knox, Jonathan Mummolo & Roman Rivera, The Role of Officer Race and Gender in Police-Civilian Interaction in Chicago, 371Science 696, 699 (2021) (finding that Black and Latino officers make fewer stops and use less force than white officers, especially against Black people and in majority-Black neighborhoods). Similarly, some research suggests that female officers are less likely than male officers to use force, Ba et al., supra, at 696, 700, or “extreme controlling behavior,” such as threats and physical restraint, Cara E. Rabe-Hemp, Female Officers and the Ethic of Care: Does Officer Gender Impact Police Behaviors?, 36J. Crim. Just. 426, 429 (2008).
Increasing diversity may be particularly important to achieving sound policing when an agency’s pre-existing culture is at odds with sound policing. A diverse workforce may be more willing to challenge dominant agency culture and follow formal agency norms and rules, rather than acceding to the informal norms, including norms that may be overly protective of officers who commit misconduct. U.S. Dep’t of Just. & Equal Employ. Opportunity Comm’n, Advancing Diversity in Law, at ii (2016) (noting research that increased diversity can make law enforcement agencies “more open to reform, more willing to initiate cultural and systemic changes, and more responsive to the residents they serve,” and can have a positive influence on specific activities and practices of law-enforcement agencies); Legewie & Fagan, supra, at 11 (reviewing research showing that officer diversity can decrease “us vs. them” solidarity that inhibits change); see generally Bethan Loftus, Dominant Culture Interrupted: Recognition, Resentment and the Politics of Change in an English Police Force, 48 Brit. J. Criminology 756 (2008) (discussing how contrasting viewpoints between white, heterosexist, male officers and female, minority, gay and lesbian officers, have impacted agency culture).
4. Recruiting, hiring, and retaining individuals with the desired traits. A policing agency that both accurately defines desirable characteristics and traits and reliably identifies officers who excel in those respects still may not be successful in its recruitment and hiring efforts if it does not offer incentives sufficient to enable it to hire and retain the candidates it identifies. Jurisdictions thus should evaluate carefully compensation, medical, and retirement benefits, and benefits that may hold special attraction for candidates the agency seeks to attract and retain, such as flexible scheduling, college-tuition contributions, and wellness programs. See, e.g., Police Exec. Rsch. F., The Workforce Crisis, and What Police Agencies are Doing About It 51 (2019); Nat’l Ctr. for Women & Policing, Recruiting & Retaining Women: A Self-Assessment Guide for Law Enforcement 111-116 (discussing how family-friendly policies can help retain female officers). Although expensive, improving compensation and benefits may prove more cost-effective in the long run, if officers otherwise leave the agency after a short time or if less appealing candidates undermine community trust and public safety or increase legal liability.
To retain officers who practice and promote sound policing, agencies also should take care to ensure that each of these systems incentivizes and rewards sound policing: performance evaluation, assignment and selection for promotion, training, supervision, and accountability. Performance evaluations, for example, should be focused not on officer “productivity” in terms of numbers of citations or arrests, but rather should more directly assess an officer’s effectiveness at furthering public safety, including through practicing and promoting sound policing. This requires that performance evaluations include qualitative components and that they assess an officer’s performance in areas such as: community engagement; effective communication and decisionmaking; use of de-escalation and problem-solving strategies; demonstrated integrity, including engaging in stops, searches, and arrests that comport with law and policy; adeptness at dealing with individuals in crisis; referral to social services or mediation (where available and appropriate); support for agency accountability efforts, including intervening to prevent other officers from committing or continuing misconduct, reporting misconduct, and cooperating with misconduct investigations; civilian commendations and complaints received by the officers; inappropriate uses of force; and compliance with other departmental rules. Malcolm K. Sparrow, Measuring Performance in a Modern Police Organization, New Persp. Policing, March 2015, at 1, https://www.ncjrs.gov/pdffiles1/nij/248476.pdf (last visited Mar. 16, 2021); Chuck Wexler, Mary Ann Wycoff & Craig Fischer, Police Exec. Rsch. F., “Good to Great” Policing: Application of Business Management Principles in the Public Sector 24 (2007),https://cops.usdoj.gov/RIC/Publications/cops-w0767-pub.pdf (last visited Mar. 16, 2021); Timothy N. Oettmeier & Mary Ann Wycoff, Personnel Performance Evaluations in the Community Policing Context, in Community Policing: Contemporary Readings 351-398 (Geoffrey P. Alpert & Alex Piquero eds., 1998). Similarly, when giving out promotions and desirable job assignments, agencies should consider not only the unique requirements of the specific position or rank, but also the officer’s more general proclivity and skill at promoting sound policing. Agencies should recognize that promoting or otherwise rewarding officers primarily on the basis of “aggressive” or “proactive” policing may not further public safety and may disincentivize sound policing. See, e.g., Samuel Walker, et al., Early Warning Systems: Responding to the Problem Officer, Nat’l Inst. of Just., July 2001, at 3, https://www.ncjrs.gov/pdffiles1/nij/188565.pdf (last visited Mar. 16, 2021) (finding that officers identified as problematic by early-warning systems are promoted at higher rates than control officers, raising question of whether some agencies reward through promotion officers whose conduct is unduly aggressive).
5. Screening out unsuitable officers and employees. To screen out officers unsuitable for sound policing, agencies should have a robust system for conducting background investigations. Background investigators should understand the relationship between the scope and focus of the investigation and the demands and requirements of the job, and should verify the information that the applicant provides by verifying it through the use of multiple specialized sources. See Lynne L. Snowden & Timothy Fuss, A Costly Mistake: Inadequate Police Background Investigations, 13 Just. Pro. 359 (2000). As discussed elsewhere in these Principles, agencies also should contribute to and avail themselves of the National Decertification Index when making hiring decisions in order to determine whether the individual has previously been decertified as a law-enforcement officer. Agencies should support efforts to prevent the lateral hiring of unsuitable officers by providing complete information about the candidate’s work history, including complaint and disciplinary history, to the extent allowable by law.
Some agencies offer credentials to individuals willing to pay for the status of being a law enforcement officer, who wish to carry a weapon, or who have offered political support. Such individuals are unsuitable to sound policing Indeed, there is no evidence such individuals benefit public safety; and there are numerous reports of paid and volunteer officers of this kind undermining public safety. See, e.g., Zachary Mider & Zeke Faux, The Gun-Law Loophole That Entices Tycoons and Criminals to Play Cop, Bloomberg (May 15, 2018), https://www.bloomberg.com/news/features/2018-05-15/the-gun-law-loophole-that-entices-tycoons-and-criminals-to-play-c (describing how police departments have given badges to paying volunteers, some of whom were later implicated in criminal activities); Larry Barker, Playing Cop: the Lake Arthur Badge Scheme, KRQE News (Apr. 26, 2018), https://www.krqe.com/news/larry-barker/playing-cop-the-lake-arthur-badge-scheme/ (quoting a New Mexico State Police chief who criticized the practice of offering police credentials to private citizens as “dangerous” and “inexcusable.”). Agencies should end such practices.
Agencies also should enhance protocols for detecting and screening out officers who have a history of racist speech or behavior, are known to belong to hate groups, including white supremacist or white nationalist groups, or who otherwise support racist ideologies incompatible with fair and objective policing. Even avowed white supremacists sometimes have been able to enter and remain in police departments. See, e.g., Vida B. Johnson, KKK in the PD: White Supremacist Police and What do Do About It, 23 Lewis & Clark L. Rev. 205, 216-221(2019). The FBI has found that white supremacists have infiltrated police departments deliberately and successfully across the United States. Id.; Intelligence Assessment, FBI Counterterrorism Div., White Supremacist Infiltration of Law Enforcement (Oct. 17, 2006).
As part of this effort, agencies should adopt and enforce policies that set clear guidelines prohibiting on-duty and off-duty conduct that endorses violence or indicates bias against a member of a protected class. Although agencies should not punish officers merely for criticizing agency action or policy, they may—consistent with the First Amendment—restrict officer speech about matters of public concern when the negative impact of the speech on agency operations and police legitimacy outweighs the employee’s interest in commenting upon matters of public concern and the public’s interest in receiving the information. See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 146-147 (1983); Liverman v. City of Petersburg, 844 F.3d 400, 407 (4th Cir. 2016) (applying Connick/Pickering test in reviewing an agency’s social media policy); Pappas v. Giuliani, 290 F.3d 143, 146 (2d Cir. 2002) (upholding termination of officer for anonymously disseminating anti-Black and anti-Semitic materials); Venable v. Metro. Gov’t of Nashville, 430 F. Supp. 3d 350, 360 (M.D. Tenn. 2019) (upholding on summary judgment the termination of officer for posting that he would have shot police victim more times); Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) (upholding termination of NYPD officers for participation in racist parade float). In setting such policies, agencies should not falsely equate support for groups that seek racial justice for historically marginalized groups (e.g., The Movement for Black Lives or the NAACP) with those that disparage such groups and falsely claim historic disadvantage to dominant groups (e.g., Oathkeepers or Proud Boys). Compare Latino Officers Ass’n, New York, Inc. v. City of New York, 196 F.3d 458, 466 (2d Cir. 1999) (finding NYPD could not prohibit Latino officers from marching in parade with association banner) with Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) (upholding termination of NYPD officers for participation in racist parade float).
Screening out undesirable candidates requires agencies to resist pressures to lower hiring standards in order to increase the number of eligible police candidates. Pressure to lower hiring standards often is greatest when a dip in applicant volume is accompanied by an increase in crime rates in the jurisdiction. But the harms unsuitable officers inflict may outweigh any public-safety benefit of accelerating hiring, especially given that officers, once hired, can be exceedingly difficult to terminate from employment. See Jeremy M. Wilson, Erin Dalton, Charles Scheer & Clifford A. Grammich, RAND Ctr. for Quality Policing, Police Recruitment and Retention for the New Millennium: The State of Knowledge 17 (2010) (arguing that changes in policing should lead police departments to be even more selective in their recruitment efforts). The experience of Washington, D.C. helps illustrate the problem: In 1989, the Metropolitan Police Department responded to congressional pressure to hire more officers by suspending its usual qualifications and application procedures. The result was, five years later, a rash of arrests of police officers hired during that period. See Keith A. Harriston & Mary Pat Flaherty, District Police are Still Paying for Forced Hiring Binge, Wash. Post (Aug. 28, 1994), https://www.washingtonpost.com/archive/politics/1994/08/28/district-police-are-still-paying-for-forced-hiring-binge/fe12d3a9-bfb1-4338-a08e-1fd3498833c3/.
Of course, changing hiring standards does not equate necessarily with lowering them. Even allowing candidates with arrests records may be a step in the right direction, if those arrests likely reflect historical racism more than the character of the individual arrested. See, e.g., Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 149-170, 192-193 (2018). There may be disagreement at times over whether a particular change to hiring criteria will support or undermine sound policing. To assist agencies in setting criteria that do not unnecessarily screen out officers who would be effective at sound policing, agencies should collect and evaluate their own agency-available data and seek to ensure that their recruitment and hiring criteria are consistent with best available research findings.
6. Liability for deficient recruitment and hiring practices. Agencies can be held legally responsible for hiring unqualified officers who commit misconduct. Notably, an agency may be held federally liable for causing a constitutional violation against a member of the public through inadequate screening of officers, but only in highly circumscribed circumstances. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 411 (1997) (“Only where adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right can the official’s failure to adequately scrutinize the applicant’s background constitute ‘deliberate indifference,’”—a necessary predicate for constitutional liability). Courts have allowed such lawsuits to move forward based on allegations that an agency hired officers with histories of excessive-force complaints, Montes v. Cnty. of El Paso, Tex., No. EP-09-CV-82-KC, 2010 WL 2035821, at *18-19 (W.D. Tex. May 18, 2010); of sexual harassment, Birdwell v. Corso, No. CIV.A. 3:07-0629, 2009 WL 1471155, at *7 (M.D. Tenn. May 21, 2009); or of criminal charges of assault and corruption of minors, M.C. v. Pavlovich, No. 4:07-CV-2060, 2008 WL 2944886, at *6 (M.D. Pa. July 25, 2008). But such cases are uncommon. In addition, agencies may be liable for using recruitment and hiring criteria that violate federal laws against discrimination, see, e.g., Lanning v. Se. Pa. Transit Auth., 181 F.3d 478 (3d Cir. 1999) (evaluating police physical tests for compliance with Title VII of the Civil Rights Act of 1964) or violate other federal laws governing police employment, see, e.g., Uniformed Services and Reemployment Rights Act, 38 U.S.C. § 4301 (returning service members must be re-employed in the job that they would have attained had they not been absent for military service, with the same pay, benefits, seniority, etc.).