St. Louis County Police officers yell for protestors to step back after riots broke out on West Florissant Avenue in Ferguson, Mo. (Photo by Nathan Hoefert, courtesy of Daily Egyptian)
By William H. Freivogel
Roger Goldman’s crusade to strengthen the way the nation deals with police conduct began 40 years ago on a Saturday in January when Maplewood police killed Thomas E. Brown in the police station. Brown, a young man with severe mental problems, had been arrested on a charge of trying to cash a stolen money order.
The events following that killing prompted Goldman to become a national voice for licensing police officers and prison guards so those abusing their authority in one jurisdiction can’t go to another and get a new gun and badge.
Flash forward to the summer of 2014. Goldman, a professor at Saint Louis University Law School, had just finalized the terms of his retirement when another Brown – Michael Brown -- was shot and killed by Police Officer Darren Wilson on Canfield Drive. Suddenly, Goldman’s crusade was important to the national debate about police misconduct.
Even though Goldman and others have helped expand police licensing over the years, a big gap in coverage remains. Twenty-five percent of the nation’s police officers cannot have their licenses revoked. The reason is that police unions are strong in the Northeast and West and have blocked license revocation in large states including New York and California. Nor do police have the kind of comprehensive national database of professional misconduct that applies to other professions, such as doctors.
The post-Michael Brown environment also revealed that many of the instances of police misconduct involve male officers making sexual demands on women. An Associated Press investigation, following up on a tip from Goldman, found that from 2009 to 2014, some 1,000 of the 9,000 officers who lost their licenses were disciplined for sex-related offenses.
An empty toolbox
One reason decertification is so important is that it is hard to convict police officers of crimes.
“The shooting cases are very difficult to win,” says Goldman. “You have to prove the crime was committed beyond a reasonable doubt and the jury must be unanimous in its decision. The federal DOJ (Department of Justice) (has) a difficult time (too). There are approximately 6,000 complaints a year, 1,000 FBI investigations, 100 prosecutions, and 60 convictions or pleas of guilty. And when the officer does choose to go to trial, there is a 50 percent chance of acquittal, a much higher percentage than in other federal criminal cases.”
Juries generally are unwilling to convict police officers “unless the police use of force was gratuitous,” says Goldman. The prosecution almost must show the suspect was “unconscious, handcuffed and then the officer shoots him.”
As Goldman suggests, the legal toolkit for addressing police misconduct has few hammers, and the burden of proof in state and federal criminal cases against police officers is high.
The Supreme Court has thrown several roadblocks in the way of federal civil rights prosecutions. In a 1945 case, Georgia sheriff Claude Screws beat a black prisoner, Robert Hall, to death with a blackjack and with his fists. The Supreme Court said it was terrible but agreed with Screws’ argument that there had to be clarity about what conduct is and is not criminal. Often, it is unclear where a person’s constitutional rights begin and end.
Former U.S. Supreme Court Justice William O. Douglas, one of the most liberal justices ever to sit on the court, said that in a federal police brutality cases there had to be proof of “specific intent” to violate a well-recognized civil right – one about which there was no debate or uncertainty. To prove specific intent prosecutors must show the officer acted with reckless disregard for the right. This is a very high standard and one that rules out federal prosecution in most police brutality cases.
More recent Supreme Court cases have also come down on the side of giving officers discretion. The late Chief Justice William H. Rehnquist wrote, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.… The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”
About the time of Michael Brown’s death, Justice Samuel Alito Jr., reaffirmed that view. “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended,” he wrote; in other words, until the suspect is dead. Alito added there must be allowance “for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”
Russian roulette in Maplewood
After Thomas Brown died in the Maplewood police station, two reporters for the Post-Dispatch, Paul Wagman and I, found evidence Maplewood police had a reputation for forcing prisoners to play Russian roulette. The stories were aided by a whistleblower, officer Don Riess, who, in the face of threats, was brave enough to tell the truth about abuse by fellow officers.
A man arrested along with Brown testified that Patrolman Kenneth Pool emptied bullets from his pistol and forced Brown to choose a number. Brown chose number 1. Pool pointed the gun at Brown, according to court testimony, and fired, killing him pointblank. Pool maintained he was unloading his gun and accidentally shot Brown.
Lt. Joseph Sorbello also was accused of playing Russian Roulette to get confessions. Goldman recalled Sorbello “had two ways of getting confessions, first putting a gun down a suspect’s throat and saying suck on it and if that didn’t work handcuffing a suspect and playing Russian Roulette and pulling the trigger.”
The prosecutor at the time was unlike the current prosecutor, Bob McCulloch. Courtney Goodman was an ambitious and publicity-seeking prosecuting attorney who filed charges against not only the officer accused of shooting Brown, Pool, but also against Sorbello. Pool pleaded guilty to manslaughter and received a one-year sentence. Charges against Sorbello were dropped.
The events led to a housecleaning of municipal government in Maplewood and the accused officers lost their jobs.
Goldman had been president of the American Civil Liberties Union and was a friend and neighbor of Wagman’s and mine. He even let Wagman sleep on his couch one night when a caller phoned with a Maplewood-related death threat and said, “I know where you live."
It was Goldman who noticed Sorbello was back in the news. Breckenridge Hills had hired him and, while off-duty, he had shot and killed a man.
“At that point I got interested in this question that has haunted me ever since,” recalls Goldman. “How could we have allowed someone who did what he did in Maplewood-Richmond Heights to be hired by another department. And that set me on this 35 years of work to try to prevent the Sorbellos of the world from getting that second chance.”
Goldman pushed for Missouri to pass a law to avoid this kind of jurisdiction hopping by bad cops. At the time, some 35 states had that kind of law; now 44 do.
Goldman recalls that the main witness in favor of the law in Missouri was Clarence Harmon, then head of internal affairs in the St. Louis Police Department and later police chief and mayor in St. Louis. “I’ll never forget Harmon testified…that in 90 percent of the cases where they (city police) would leave under fire, they would be out working for a St. Louis County police department.”
The 50-plus small police departments in St. Louis County had an incentive to hire these St. Louis officers who quit under a cloud because the county departments could avoid paying for their training, hire immediately since they had their training certificate and not have to pay a high salary since good departments would not hire the officers.
Missouri enacted the Police Officers Standards and Training law in 1988. Rep. Sheila Lumpe attached the bill to a juvenile funding measure that was almost certain to pass and Gov. John Ashcroft signed it. Illinois passed a law a few years later, but it was weaker. Police would lose their license only if convicted of crimes.
Missouri law weakened
Missouri weakened its law one decade ago by removing language that allowed discipline of officers for “gross misconduct indicating an inability to serve” as a police officer. That language had used in 2001 to discipline three Webster Groves officers forced out of the department after getting in hot tubs with teens while on duty.
Missouri’s POST commission is short staffed and this year the legislature turned down its request for more staffing. Still, the 53 officers whose licenses were revoked in Missouri in 2015 was the seventh highest number in the country. Illinois, by contrast, revoked only 11 officers’ licenses.
One important difference among revocation laws is whether prison guards are covered. Twenty-one states include prisons guards but neither Missouri nor Illinois does. States that do revoke licenses of guards find many abuses among correction officers. Florida, for example, revoked 281 corrections officers in 2015 as compared to 102 police officers.
Goldman notes that one of the military police officers who abused prisoners at Abu Ghraib, Charles Grancer Jr., had been accused of abuse while a prison guard in Pennsylvania. The damage to America’s reputation from Abu Ghraib shows “there are profound consequences that can happen without this intelligence in the database.”
More than half of the nation’s revocations are in two states with active police certification programs -- Florida and Georgia. Other large states, such as Pennsylvania, do little; only two officers in Pennsylvania had their licenses revoked in 2015.
But the biggest gap in police licensing is in the Northeast and West. The states without revocation are Massachusetts, New Jersey, New York, Rhode Island, Hawaii and California (which once had the power to cancel certificates but no longer does.)
“These are very blue states, very strong police union states that have more than 25 percent of all law enforcement officers,” Goldman said. “So not having them in the system is unbelievable…. It is really ludicrous.”
Federal carrot
Goldman proposed to the President’s Task Force on 21st Century Policing that the federal government use the carrot of federal anti-crime dollars from the Community Oriented Policing Services program to force states to set up revocation authorities. While his proposal got no traction, a related idea did. Goldman proposed, and the Task Force recommended, federal dollars be use to prod states to join into a national database of police officers.
There already is a voluntary database involving 39 states called the National Decertification Index. But it has weaknesses. It only includes decertified officers, excludes some of the biggest states and has no public funding.
“If the feds think it is important enough to do it (have a national database) for doctors, why wouldn’t they think it was important when officers move interstate?” Goldman asks.
The other big issue with police licensing, Goldman says, is the fragmentation of policing. “Because of our federal system we devolved to the lowest common denominator, the lowest level government, the power to regulate police…. We have 18,000 state and local law enforcement departments. It is ludicrous…. We have really got an intolerable situation for which there may not be an easy solution. So it is no surprise to me that this is going to be a long-time struggle.”
St. Louis County is a prime example of the fragmentation of policing, with 50-plus municipal departments. Goldman says he hopes new state and county laws setting standards and revenue limits on the county departments will force many to close. But those pieces of legislation have lost initial court fights.
Goldman notes that Darren Wilson had applied for a job with the St. Louis County Police Department before getting hired by Ferguson. The county turned him down.
“If we had just one St. Louis County police department, Darren Wilson would not have confronted Michael Brown because St. Louis County wouldn’t hire Darren Wilson.”
In the real world, though, there was a confrontation, a struggle for Wilson’s gun and deadly shots that ended Brown’s life and Wilson’s career as a Ferguson officer. Out of the death came a renewed debate over police discipline that has given Goldman’s crusade new life.
Goldman writes about the importance of state laws in police reform: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817551