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In my August 2017 column for The Champion, I briefly touched upon the tragic case of Tamir Rice. Twelve-year-old Tamir was shot and killed in Cleveland in 2014. He had been playing with a pellet gun in a park when, within two seconds of arriving on the scene, Officer Timothy Loehmann opened fire.¹ While I was writing at the time about systemic racism and how a 12-year-old black boy was afforded no measure of careful, deliberate treatment, the article could just as easily have been about the contrast with a 26-year-old white officer who was repeatedly — and counter to his record — extended every benefit of the doubt. As the case unfolded, the true scope of tragedy for Tamir Rice and his family became apparent: Timothy Loehmann never should have been on the Cleveland — or any — police force.

Officer Loehmann had joined the Cleveland Police Department in 2013 after working as an officer in Independence, Ohio.² Despite supervisors in Independence recommending he be fired for lying, insubordination and an “inability to emotionally function,” Officer Loehmann was allowed to resign.³ Rather than being forced to seek employment in a profession where he wasn’t trusted with a weapon, Timothy Loehmann simply went 20 minutes up the road. He joined the untold number of police officers around the country who are terminated, or forced to resign, from one police department and subsequently hired by another. Loehmann’s application mentioned none of his troubling red flags. The Cleveland Police Department, for its part, never bothered to check.⁴ Less than six months after Timothy Loehmann joined the force, Tamir Rice would be dead.

Officer Loehmann’s omissions were discovered after the Tamir Rice shooting and he would be fired, but sadly it was too late. Just as alarming is how common, and easy, it is for police to be terminated and rehired. So frequent is the practice, in fact, that it has been coined “gypsy cops” or the “officer shuffle.”⁵ Because police terminations are not recorded in a central registry, it’s impossible to know the true scope of this dangerous problem. The anecdotal, limited or local studies that have been done, however, point to a widespread and dangerous practice.

A 2017 news investigation in and around Ohio gathered records from 40 different police departments over a three-year period, finding nearly a dozen police officers hired after leaving a previous department because of discipline.⁶ A larger Washington Post report among the roughly 40 largest municipal and county police departments in the United States found an equally alarming problem: of the 1,881 officers fired between 2006 and 2017, 451 (1 out of 4) appealed the decision and retained their employment.⁷ Of those, eight were fired and rehired multiple times.⁸ 

As with Tamir Rice, it stands to reason that the conduct that facilitated an officer’s departure from his or her original department not infrequently surfaces in subsequent employment. Offenses can range from a failure to follow proper procedure and dishonesty to assault and homicide. A study from Police Quarterly found that over 40 percent of sexual violence at the hands of police was committed by repeat offenders, officers who averaged four incidents over three years.⁹ Some of the more glaring episodes of officer misconduct in the “officer shuffle” include the following:

• An Oregon officer kissing a 10-year-old girl and being hired three months later in Kansas, where he once again was suspected of a sexual relationship with a minor.¹⁰ 

• A St. Louis officer striking a 12-year-old girl in the face with his gun in 2006 and falsifying a police report in 2007 before resigning. He was hired twice more, however, the second time by the much-maligned Ferguson Police Department in Missouri, where he is being sued for his behavior during a traffic stop.¹¹ 

• A Georgia State Patrol trooper tasing a 51-year-old handcuffed woman and lying about it when investigated in 2010. He was hired two years later as a school resource officer.¹² 

A substantial part of the problem lies in the lack of uniform tracking and transparency across jurisdictions and among states. While it seems unconscionable for a position with as much impact as a police officer, no nationwide system tracks officer certifications. A doctor who loses her license cannot practice in any state, but a police officer who loses her certification can cross state lines and, once again, be handed a badge and a gun.

Individual states are often part of the problem. New York, for example, has a statutory restriction making personnel records for police officers confidential without either the officer’s express written consent or a court order.¹³ New York courts, for that matter, have proven willing partners. In People v. Gissendanner, the New York Court of Appeals upheld a lower court ruling to deny a subpoena request for employment records for officers in the case, setting a seemingly unattainable standard in which the defense counsel must show that the requested information, “if known to the trier of fact, could very well affect the outcome of the trial.”¹⁴ While the court stressed the importance of protecting officers’ credibility and shielding them from “fishing expeditions,” little time was spent on just how the defense is supposed to meet the requirements for a preliminary showing without first gaining access to the records.¹⁵ 

California’s restrictions for police records rank as some of the most protective in the country. Legislative measures to improve public access for disciplinary records often fail in the face of heavy disapproval from police unions.¹⁶ The affect can be seen in the largest sheriff’s department in the country: L.A. County. When records were leaked to the Los Angeles Times, the union representing deputies tried to get a court order preventing publication of the files. The newspaper’s investigation revealed the following information about the 280 applicants hired by the Sheriff’s Department in 2010:

• 97 faced previous allegations of lying.

• 92 faced previous discipline for serious, on-duty misconduct by other police departments.

• 29 were forced to resign — or were fired — from a previous law enforcement position.

• 15 were identified by background investigators for attempting to falsify their polygraph examination.¹⁷ 

Against stiff union opposition and restrictive legislation, public pressure and unfavorable press has yielded change in some instances. When asked for comment on several of the reports mentioned above, several local politicians expressed surprise at the findings, promising to initiate reviews of officer backgrounds.¹⁸ Still, a 2015 national study found that a police officer’s disciplinary records are kept confidential in 23 states and public access is limited in an additional 15 states.¹⁹ 

The defense bar has a role to play. In 2015, the Legal Aid Society in New York began the Cop Accountability Project — informally known as the “Bad Cop Database” — compiling data on police officers, including lawsuits, judicial decisions, media and disciplinary records disclosed in court proceedings.²⁰ Armed with a method to challenge witness officers, New York City defenders began seeing changes on the other side of the aisle, with prosecutors attempting to work with the NYPD to similarly track discipline records to avoid any surprises on the stand. This shift is notable not only for the potential impact of transparency, but also for the fact that two sides ostensibly aligned weren’t already closely working together. Recently disclosed communication between the Manhattan District Attorney’s Office and the NYPD suggests anything but cooperation. In a letter dated May 18, 2018, Manhattan District Attorney’s Office General Counsel Carey Dunne wrote that Manhattan and the other district attorney offices were frustrated with the NYPD continually failing to provide officer disciplinary records, among other information, the DA’s Office requires for charging decisions:

And, despite the terms of an agreement reached with our office in 2014, the NYPD has failed to provide us with access to certain reports and video surveillance feeds. These limitations frustrate our ability, not only to prepare for trial, but to make early assessments of witness credibility, explore weaknesses in a potential case, and exonerate individuals who may have been mistakenly accused. (These frustrations are shared, as you know, by the offices of the other four District Attorneys in the city and the Special Narcotics Prosecutor.) ²¹ 

The challenges of an uncooperative police department, restrictive state laws, and feckless courts make efforts like the Cop Accountability Project even more important. To that end, in late 2017 Legal Aid opened access to its database, which had grown to include information on more than 10,000 officers, to other city public defender organizations.²² 

While police groups tend to oppose the releasing of records, instances in which information has been more forthcoming suggest that transparency benefits both the public and the police. In an example of openness, an expansive North Carolina program tracks data on every traffic stop made in the state, including the race and gender of the driver along with the date, time, and place of the stop.²³ This information is catalogued monthly and posted to an online database, searchable by the public. Since individual officers can be queried by an identifying number, police leadership can proactively root out profiling or irregular patterns.²⁴ One police chief reported a drop in searches and use of force during traffic stops soon after OpenDataPolicingNC.com was launched.²⁵ Policy analysts and academics have long linked openness with public trust and as a critical component of community policing.²⁶ In today’s heated debate about law enforcement, race and the use of force, the opposite seems very true: slow internal investigations, confidential records, and infrequent discipline exacerbate police/public relations and breed mistrust.

This mistrust, along with very public instances of police violence, has led to the rise of citizens holding law enforcement accountable themselves. Modern cellphone technology has allowed groups like Copwatch to film police interactions and post the footage online. Rather than facing the problems of police narration, perspective and troubling instances of recordings stopping and starting at important points in a police/public interaction, citizen-filmed footage — or sousveillance — offers a more complete view of an incident.²⁷ Despite court rulings protecting sousveillance, citizens can face illegal instruction from the police to cease filming, movement to obstruct the view of the camera, and even arrest for filming police.²⁸ 

In one sense, it is inspiring that grassroots activists have taken on the mantle of holding law enforcement accountable. In another sense, however, it is unfortunate that policymakers, restrictive laws and the courts have made it necessary for them to do so. There will be no simple answer for a problem as systemic as the officer shuffle, but the defense bar must be a leader for reform. We can challenge local police departments to release discipline records and push back against restrictive court rulings in every case that rests on police testimony. The defense bar can mobilize efforts like the Cop Accountability Project beyond the courthouse. We can hold politicians accountable at the state level and demand they stand up to the lobbying efforts of police unions to keep discipline records confidential. And we can work to make those records public so citizen groups like Copwatch can continue their valuable public service. Above all, however, we must ensure that the interest law enforcement first serves and protects is that of the public, not their own.

Notes

1. Emma Fitzsimmons, Video Shows Cleveland Officer Shot Boy in 2 Seconds, N.Y. Times, Nov. 26, 2014, https://www.nytimes.com/2014/11/27/us/video-shows-cleveland-officer-shot-tamir-rice-2-seconds-after-pulling-up-next-to-him.html.
2. Jacey Fortin & Jonah Engel Bromwich, Cleveland Police Officer Who Shot Tamir Rice Is Fired, N.Y. Times, May 30, 2017, https://www.nytimes.com/2017/05/30/us/cleveland-police-tamir-rice.html.
3. Id. 
4. Id. 
5. Cara E. Rabe-Hemp & Jeremy Braithwaite, An Exploration of Recidivism and the Officer Shuffle in Police Sexual Violence, 16(2) Police Quarterly (June 2013), http://journals.sagepub.com/doi/abs/10.1177/1098611112464964; see also Tim Carman & Steve McVicker, Drug Money, HoustonPress, Sept. 6, 2001, http://www.houstonpress.com/news/drug-money-6560746.
6. Craig Cheatham & James Leggate, ‘Recycled Cops’ Move from Department to Department Despite Discipline Issues, WCPO Cincinnati, Nov. 21, 2017, https://www.wcpo.com/longform/i-team-recycled-cops-move-from-department-to-department-despite-discipline-issues.
7. Kimbriell Kelly et al., Fired Rehired, Wash. Post, Aug. 3, 2017, https://www.washingtonpost.com/graphics/2017/investigations/police-fired-rehired/?utm_term=.5e4347c18800.
8. Id. 
9. Supra note 5.
10. Timothy Williams, Cast-Out Police Officers Are Often Hired in Other Cities, N.Y. Times, Sept. 10, 2016, https://www.nytimes.com/2016/09/11/us/whereabouts-of-cast-out-police-officers-other-cities-often-hire-them.html.
11. Id. 
12. Hyosub Shin, Troubled Cops Land Jobs in Georgia Schools, Atlanta Journal-Constitution, May 22, 2017, https://www.myajc.com/news/local-education/troubled-cops-land-jobs-georgia-schools/2p1SpVzlRp0ZKPg9uj4lFL.
13. N.Y. Civ. Rights Law § 50-a. Personnel records of police officers, firefighters and correction officers, https://codes.findlaw.com/ny/civil-rights-law/cvr-sect-50-a.html.
14. People v. Gissendanner, 48 N.Y.2d 543, 548 (1979).
15. Kate Levine, The Policing in America Symposium: We Need to Talk About Police Disciplinary Records, City Square Fordham Urb. L.J., Aug. 7, 2017, http://urbanlawjournal.com/we-need-to-talk-about-police-disciplinary-records/#_ftnref12.
16. Liam Dillon, California Has Some of the Toughest Laws Keeping Police Discipline Private. That Seems Unlikely to Change, L.A. Times, Feb. 28, 2017, http://www.latimes.com/politics/la-pol-sac-police-accountability-bills-20170228-story.html.
17. Robert Faturechi & Ben Poston, Sheriff’s Department Hired Officers with Histories of Misconduct, L.A. Times, Dec. 1, 2013, http://graphics.latimes.com/behind-the-badge.
18. Supra note 10.
19. Robert Lewis et al., Is Police Misconduct a Secret in Your State?, WNYC, Oct. 15, 2015, https://www.wnyc.org/story/police-misconduct-records.
20. Id. 
21. Mike Hayes & Kendall Taggart, The District Attorney Says the NYPD Isn’t Telling Prosecutors Which Cops Have a History of Lying, BuzzFeedNews, June 2, 2018, https://www.buzzfeed.com/mikehayes/nypd-cops-lying-discipline-disrict-attorneys-prosecutors?utm_term=.vhLeDPonPv#.txaOP1qV10.
22. Robert Lewis, More Defenders Get Access to ‘Bad Cops’ Database, WNYC, Nov. 9, 2017, https://www.wnyc.org/story/more-defenders-get-access-bad-cops-database.
23. David Hudnall, A New Tool to Track Police-Stop Data Across North Carolina, Indy Week, Dec. 17, 2015, https://www.indyweek.com/news/archives/2015/12/17/a-new-tool-to-track-police-stop-data-across-north-carolina.
24. Open Data Policing does not track motorist or officer names, but officers are identified by an assigned number for the purpose of the site. See https://opendatapolicing.com.
25. Supra note 23.
26. Brian A. Jackson, Strengthening Trust Between Police and the Public in an Era of Increasing Transparency: Testimony Before the House Republican Policy Committee Law Enforcement Task Force (Oct. 6, 2015), https://www.rand.org/content/dam/rand/pubs/testimonies/CT400/CT440/RAND_CT440.pdf.
27. Timothy Williams et al., Police Body Cameras: What Do You See? N.Y. Times, April 1, 2016, https://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html.
28. ACLU of Texas, Your Right to Film Police, https://www.aclutx.org/en/know-your-rights/your-right-film-police.

About the Author

Rick Jones is the executive director and a founding member of the Neighborhood Defender Service of Harlem, which has gained national and international recognition for its early-entry, holistic, client-centered, community-based, team-defense approach to public defense. He teaches the criminal defense externship and a trial practice course at Columbia Law School, serves on the faculty of the National Criminal Defense College in Macon, Georgia, and is a member of the board of the International Legal Foundation.

Rick Jones
Neighborhood Defender Service of Harlem
New York, NY
212-876-5500
www.ndsny.org
rjones@ndsny.org 

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