(a) State Certification and Decertification of Officers.
- (1) States should only permit officers certified to exercise policing powers to do so, and they should certify only those officers who meet carefully considered state standards for qualifications and training. Except in exceptional circumstances, states should not certify an officer who has been decertified in that state or in another state.
- (2) States should decertify officers who fail to meet ongoing requirements for certification or who commit acts warranting decertification.
(b) Agency Reporting and Hiring Obligations.
- (1) Agencies should report arrests of, convictions of, or serious misconduct by officers, as well as officer terminations, to the state agency responsible for decertification, and states should mandate that they do so.
- (2) Except in exceptional circumstances, agencies should not hire an officer who has been decertified in another state.
Comment:
a. Certification and decertification of police officers. Certification is a process by which state officials formally establish and attest that a person meets the standards for exercising the powers of a police officer within the state. Decertification (also known as revocation) deprives an officer of the certification or license to serve as a sworn officer, and thereby bars that individual from serving as an officer in the state.
A state, by certifying police officers before they commence their responsibilities, assures the public that its officers are qualified and prepared for their duties, and signals its commitment to sound policing. The practice of decertifying officers advances sound policing in three ways. First, it prevents misconduct and harm by prohibiting the continued employment of an officer who already has committed serious misconduct. Second, it promotes the legitimacy of policing by preventing officers who have abused the public trust from continuing to serve as officers and by making clear the state does not tolerate such abuse. Third, it enhances policing by maintaining standards of professional conduct for all officers. All states license or certify police officers, and all but a handful decertify officers in some circumstances. All states should both certify and decertify officers, and states should develop both the standards for certification and the grounds and procedures for decertification in light of the demands of sound policing.
b. Requiring certification of all individuals who exercise policing powers. Some states presently allow individuals to exercise the powers of an officer in auxiliary or temporary positions before they are certified or without earning state certification. Such practices undermine sound policing by allowing individuals who do not have the necessary qualifications and preparation to exercise state authority to do so. They also erode public confidence that the officers the public encounters are qualified or competent. To ensure that officers meet the standards that the state specifies, no state should permit officers who are not certified to exercise the powers of an officer. Thus, states should not permit auxiliary or provisional officers who are not fully qualified, trained, and certified to exercise policing powers.
c. Grounds for decertification. Legislatures should require decertification of officers who fail to meet minimum professional standards or who have committed serious wrongdoing. Although states reasonably may vary in their elaboration of the kinds of serious misconduct that should give rise to decertification, and in their capacity to investigate and assess misconduct, decertification should, at a minimum, occur upon:
- (1) conviction (including by a plea of guilty or nolo contendere) for any felony and any misdemeanor that reflects on an officer’s fitness to serve, regardless of the sentence imposed;
- (2) commission of any conduct that would constitute a felony in the state;
- and
- (3) commission of any conduct, whether criminal or not, that constitutes a significant abuse of the public trust or reflects an unfitness to serve, including, for example, sexual misconduct in the line of duty, unjustified use of deadly force, or perjury.
Some states presently limit decertifications to officers who have been convicted of a crime.
Although using criminal convictions as the only basis for decertification reduces discretion and limits the institutional burden necessary to carry out decertifications, a decertification process that operates only upon conviction does not satisfy this Section. Criminal prosecutions of police officers are simply too rare and too limited in scope to be the sole basis for decertification. While criminal prosecutions are subject to a standard of proof that is commensurate with the seriousness of criminal stigma and punishment, they are inappropriate for determining whether an individual should continue to have authority to exercise the powers of a police officer. Limiting decertification to cases in which there is criminal conviction is inadequate to maintain professional standards, prevent harm, or sustain community trust in the institution of policing.
d. State commission and process for decertification. Every state should have a commission or agency that has the power to decertify officers pursuant to standards provided by law. Decertification should take place when an officer voluntarily surrenders his or her certification; when a judgment of conviction for an offense warranting decertification has been entered for an officer in any state or federal court; or when a state commission, board, or administrative process finds that an officer warrants decertification because he or she no longer meets the qualifications for certification or because he or she has committed misconduct that requires decertification under state law. At a minimum, state agencies should be organized, staffed, and have adequate resources to enable them to identify, assess, and decertify officers when one of these conditions has been met, regardless of whether criminal or disciplinary action has been taken with respect to the misconduct. States should not place on agencies the burden of assessing or proving that conduct warrants decertification, or set up unreasonable barriers to establishing that an officer should be decertified.
State decertification processes should be fair to officers and consistent with the principles of procedural justice specified in § 1.06. In order to fully serve the purposes of decertification and to meet minimum standards of accountability and transparency, state commissions should track and make public, by officer and agency, reports of misconduct warranting decertification, findings by the state commission, and any decertifications or other discipline imposed. See § 14.14(b).
e. Sanctions short of decertification. Officers who commit misconduct warranting decertification should be decertified. In addition, states should consider empowering state commissions responsible for decertification to impose lesser sanctions when misconduct does not warrant decertification but otherwise violates professional standards because, for example, it is dishonest, illegal, or shows disregard for the rights of individuals. Such lesser sanctions may include a temporary suspension of certification, probation, or remedial retraining. Records of such misconduct and the lesser sanctions imposed also should be kept, and repeated instances of misconduct should be a basis for decertification.
f. Reporting misconduct to state commission.In order for decertifications to serve their purposes, state commissions responsible for decertification must be aware of officers who may be subject to decertification. Policing agencies should notify the state commission when they have reason to believe an officer has committed misconduct that warrants decertification, whether or not the agency takes disciplinary action or continues to employ the officer. Agencies also should report known arrests and convictions of officers. State commissions also should readily accept complaints from members of the public. To ensure effective reporting, states should mandate that agency heads report arrests, convictions, and other conduct that may warrant decertification, and should protect agencies, officers, and members of the public from civil liability for good-faith reporting of alleged misconduct to state commissions.
Agencies sometimes engage in voluntary dismissal agreements with officers who are suspected of or known to have committed misconduct that would support decertification. Some such agreements include language permitting officers to accept dismissal in exchange for an agreement by the law-enforcement agency to refrain from making a finding about misconduct or reporting alleged misconduct to the state decertification commission. Any agreement that requires an agency to refrain from reporting to the state commission officer misconduct it has reason to believe would justify decertification is inconsistent with this Section and should be prohibited by the state. Although voluntary dismissal agreements have the advantage of decreasing the administrative burden on agencies in removing problematic officers, they also allow those officers to seek employment in other jurisdictions. This contravenes the purpose of decertification. Without regard to whether a state forbids such agreements, agencies should not enter agreements that prevent them from reporting misconduct potentially meriting decertification.
g. Checking state and national decertification records. State law should require that agencies check state decertification records and the National Decertification Index, or any future national database of decertified officers, before hiring officers. See § 14.14. Even if a state fails to require this, agencies nevertheless should check state decertification records and any national databases, and should contact prior employers, before hiring officers. This is necessary to determine whether an officer has committed misconduct warranting decertification or left employment after a complaint about or during an investigation into misconduct. Agencies receiving such inquiries should provide full and accurate information. In every instance, prior to certifying an officer, state commissions should check state and national decertification indices to determine whether an officer has been decertified.
h. Standards for hiring or certifying a previously decertified officer. State commissions should not recertify an officer who has been decertified in the same state, nor should they certify an officer who has been decertified in another state, except in exceptional circumstances, such as those detailed below. If states do choose to permit certification of a previously decertified officer, they should set by law clear and stringent conditions for such certifications. Similarly, no agency should hire a previously decertified officer unless doing so is consistent with written policies and hiring practices specifying stringent conditions under which a previously decertified officer may be hired. At a minimum, conditions for certifying or hiring a previously decertified officer should include: (1) a waiting period of not less than three years after decertification; (2) the recent completion of academy and field training mandated for entry-level hires (even if previously completed); and (3) evidence that the officer has taken responsibility for prior wrongdoing and has made appropriate restitution. States should not certify and agencies should not hire officers who have previously been decertified for intentional, serious abuses of the public trust.
Reporters’ Notes
1. Purpose. Decertification emerged as a tool for addressing police misconduct in the 1970s. When officers are deprived of their licenses or certifications, they cannot be retained as sworn law-enforcement officers by an agency or hired within the state by another agency. Thus, decertification prevents a common problem in policing: that officers who are known to have committed serious misconduct and are separated from one department can easily be hired by another. See Roger L. Goldman, A Model Decertification Law, 32 St. Louis U. Pub. L. Rev. 147, 149 (2012).
Decertification may seem unnecessary. All departments engage in background checks of officers before they hire them, and effective investigations should uncover most previous misconduct in the line of duty. Once misconduct is uncovered, departments should have an incentive to avoid hiring officers who experience shows might be misconduct-prone.
Nevertheless, evidence suggests that officers fired for misconduct move from department to department, and that they are more likely than other officers to be fired for misconduct. See Ben Grunwald & John Rappaport, The Wandering Officer, 129 Yale L.J. 1676, 1716-1718 (2020) (finding in Florida from 1988 to 2016, nearly 800 officers who had been fired for misconduct were employed by new agencies in any given year); id. at 1747 (finding that previously fired officers are more likely to be fired for misconduct and to “incur complaints of serious misconduct”). First, departments may investigate inadequately or otherwise fail to uncover misconduct that is unreported by a previous employer. Second, agencies may discover misconduct and hire officers anyway. See id. at 1747-1757 (assessing reasons departments may hire officers with a history of misconduct); see also Goldman, supra, at 149-150. For instance, resource-constrained departments may hire officers who are already certified rather than pay for training new officers. Goldman, supra, at 149-150. In addition, officers with a history of misconduct may be willing to work at the lower wages offered by some departments. Loren T. Atherley & Matthew J. Hickman, Officer Decertification and the National Decertification Index, 16 Police Q. 420, 421 (2013).
Although victims may have a cause of action against municipalities under 42 U.S.C. § 1983 for misconduct that arises from inadequately screened officers, see Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997), successful litigation of this sort is rare and unlikely to discourage agencies from hiring previously fired officers. See Police Misconduct Law and Litigation § 4:19 (3d ed. 2020) (“Culpability requires a strong connection between the background of the particular applicant and the specific constitutional violation alleged. Establishing municipal liability in the hiring context requires a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff.”) (internal quotations omitted) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998)). So perhaps it is not surprising that agencies do not consistently and vigorously detect and avoid hiring officers who may not be suitable for sound policing. Nor do they consistently screen officers to ensure that those who work for the agency continue to meet the qualifications and training standards established by law. See Philip Stinson, et al., Police Integrity Lost: A Study of Law Enforcement Officers Arrested, Crim. Just. Fac. Publ’ns (2016) (finding that many officers continue to serve after convictions that disqualify them from service under state law). Decertification therefore plays an important role in protecting the public from police misconduct, in promoting confidence in agencies and officers, and in maintaining high standards for policing. In addition, decertification signals a state’s commitment to ensuring lawful and sound policing.
2. Providing for decertification. The provision in this Section that every state have a commission empowered to decertify officers is consistent with the practice in the overwhelming majority of states and with the Model Minimum State Standards for Professional Conduct developed by the International Association of Directors of Law Enforcement Standards and Training (IADLEST). See Int’l Ass’n of Dirs. of L. Enf’t Standards & Training, Model Minimum Standards §§ 1.0.4, 6.0 (each state should have a commission with the power to revoke police-officer certifications). State commissions, often known as police officer standards and training boards or commissions (POSTs), have the authority to revoke officer certifications in all but a few states. The remaining states do not decertify officers; Hawaii has no POST, and POSTs in Massachusetts, New Jersey, New York, Rhode Island, and the District of Columbia do not have the authority to revoke an officer’s certification, though New Jersey law provides for license forfeiture after some criminal convictions. See N.J. Stat. Ann. § 2C:51-2 (West 2007).
3. Grounds for decertification. Existing state laws on decertification vary substantially with respect to what conduct is decertifiable and how that conduct is specified. For example, some states permit decertification only upon conviction of a crime. See, e.g., Ala. Code §§ 36-21-45(7), 36-21-46(5) (2001); Mich. Comp. Laws Ann. § 28.609 (West 2019). This approach is administratively efficient because it allows POSTs to exist but without the capacity to investigate and adjudicate misconduct to determine whether it warrants decertification. However, because criminal convictions depend on prosecutorial discretion and proof beyond a reasonable doubt, this limitation also prevents decertification from serving its purposes fully. In fact, when decertification is limited to convictions, as it is in some states, it may be largely redundant of laws that prohibit felons from serving as officers or that require that officers be able to carry firearms, which they are barred from doing after they have been convicted of felonies or crimes of domestic violence. See 18 U.S.C. § 922(g). Among states with more expansive grounds for decertification, some use language such as “moral turpitude” or “engaging in conduct unbecoming a law enforcement officer,” to set a standard for decertification. See, e.g., Mo. Rev. Stat. § 590.080.1(3) (West 2021) (allowing decertification for “any act while on active duty or under color of law that involves moral turpitude”); S.D. Codified Laws § 23-3-35(3) (2012) (allowing decertification for “conduct unbecoming of a law enforcement officer”). Though general and sometimes expansive, in most states such standards have provided clear notice to officers about conduct that may be grounds for decertification, as they should. Other states specify a narrower range of conduct for which decertification is justified. See, e.g., Utah Rev. Stat. § 53-6-211(1)(a)-(h) (West 2021); N.D. Cent. Code Ann. § 12-63-12(1) to (2)(e) (West 2013). These approaches to decertification have their advantages and disadvantages, and this Section does not advocate a specific means of articulating the grounds for decertification in the law. Instead, each state should adopt a method for specifying decertifiable misconduct that best fits its needs in creating an effective, workable, and fair decertification system. States may also provide additional guidance about decertifiable misconduct through regulation.
A couple of states decertify officers whenever they are terminated from a law-enforcement agency or leave in lieu of termination. See, e.g., Wis. Stat. Ann. § 165.85(3)(cm) (West 2015) (allowing the police officer standards and training board to “[d]ecertify law enforcement, tribal law enforcement, jail or juvenile detention officers who terminate employment or are terminated”). This approach is problematic because even a good-cause firing of an officer does not necessarily justify revocation of an officer’s license. Goldman, supra, at 153. In addition, such an approach inhibits uniformity within the state about what constitutes misconduct warranting decertification, and muddies the message that other states should draw from a state’s decision to decertify.
4. Fairness and procedural justice for officers. As Comment d indicates, state processes for investigating and adjudicating whether misconduct merits decertification should provide fair process for officers, including notice and an opportunity to be heard, and should adhere to the principles of procedural justice, as discussed in § 1.06. This recommendation is consistent with IADLEST’s minimum standards. See Int’l Ass’n of Dirs. of L. Enf’t Standards & Training, Model Minimum Standards § 6.1.1. Nevertheless, states should ensure that processes do not erect unnecessary or unjustifiable barriers to holding officers accountable.
5. Sanctions short of decertification. Most states presently grant POSTs authority to issue sanctions short of decertification. For example, 26 POSTs have the power to suspend an officer’s certification temporarily. Atherley & Hickman, supra, at 424. Some agencies also have the power to suspend an officer from duty, to order additional training, to issue a reprimand, to place an officer on probation, to require counseling, or to impose a fine. Id. at 425. The recommendation in this Section that POSTs have sanction powers other than decertification also is consistent with § 6.1.0 of IADLEST’s Model Minimum Standards.
6. Reporting misconduct to state commission. States that permit decertification for grounds other than criminal conviction necessarily are reliant on agencies to report officer misconduct. This has been a significant obstacle to effective use of decertification in some states. Goldman, supra, at 153-154. Some states require that only felonies be reported. Only 18 states require agencies to report awareness of any conduct that could lead to decertification. Atherley & Hickman, at 428. Even where reporting requirements exist, they may be disregarded if state POSTs lack the resources to assess and encourage reporting and to enforce the requirements. Providing more resources to POSTs would help to alleviate the problem, but it is unlikely to prove a panacea. Goldman, supra, at 154.
States that do not require reporting should mandate and encourage it, including by providing protection against civil liability for agencies that make good-faith reports of alleged misconduct to the state or to another agency. The reporting requirement proposed in this Section is consistent with § 6.0.7.1 of IADLEST’s Model Minimum Standards. Similarly, IADLEST supports immunity from civil liability for agencies that engage in good-faith reporting of possible misconduct, as recommended in this Section. Model Minimum Standards § 6.0.7.2 (IADLEST).
Presently, states overwhelmingly require agencies to report all separations of officers from departments to the state POSTs, not merely those involving misconduct. Atherley & Hickman, at 428. This Section supports this practice and recommends it to the remaining states. Separation reporting allows state POSTs to maintain better records concerning officers, and it can help POSTs identify agencies that avoid misconduct findings rather than report officers. One recent study showed that while more than a quarter of separations of officers from agencies were retirements, more than half were resignations. Approximately 10 percent were expressly deemed dismissals, and another five percent were rejections of officers during their probationary period. Brian A. Reaves, Hiring and Retention of State and Local Law Enforcement Officers, 2008 – Statistical Tables, Bureau of Just. Stats., Oct. 2012, at 6.