How to prevent police misconduct

The Tyler Morning Telegraph offered up a feature today analyzing 13 cases of East Texas police officers arrested or convicted for alleged crimes in the past two years ("Breaking the Badge," Sept. 4). Officials hope more thorough background checks will prevent similar, future incidents.

It wasn't so long ago my job as Police Accountability Project director at ACLU of Texas required me to track best practices regarding police disciplinary processes (I left the group last year), especially in Texas, so I could go on quite a bit about this topic. But before I point out a few reasons it's often difficult for police administrators to root out misconduct, here's the list of recent arrested or convicted officers from the Telegraph article:

Former Malakoff Police Department Officer Horace Anthony Poullard has been charged, but not convicted, of sexually assaulting a woman in custody. FBI officials believe there could be more victims.

Former Jacksonville Police Department Officer Larry Pugh was convicted of sexually assaulting women in custody and perjury.

Former Troup Police Chief Chester Kennedy and former Officer Samuel Mark Turner were both convicted of tampering with evidence in a corruption probe.
Authorities believe it was common practice for officers in the department to “accept money and drugs as bribes to cover up criminal offenses for individuals,” according to a search warrant affidavit. Kennedy was sentenced to 10 years in prison after he was found guilty of stealing and tampering with evidence seized by his department. Turner was sentenced to three years in prison.

Randall “Randy” Lee Thompson, a former Cherokee County Pct. 3 constable and former Texas prison guard, was caught on tape discussing the sale of methamphetamine, as well as threatening to kill or hurt others, including law enforcement officers, traveling to Mexico and planning other illegal activities.
He pleaded guilty to distributing 108 grams of pseudoephedrine to a confidential witness working for the FBI.

Former Rusk County Sheriff’s Chief Dusty Flanagan and former Lt. Johnny Leon Davidson Jr. both pleaded guilty to deprivation of rights under the color of law — assaulting and causing bodily injury to a man handcuffed in Flanagan’s office, depriving him of his constitutional rights, including excessive force and abusing his authority as a deputy. They each face up to 10 years in prison.

Former Rusk County Sheriff’s Investigator Michael Wayne Davis pleaded guilty in July of this year to insurance fraud. He was sentenced to two years deferred adjudication, community supervision and fined $2,000.

Kenneth Calvin Martin, a former Rusk County Sheriff’s deputy, was arrested for possession of child pornography on the patrol car’s laptop. He pleaded guilty to the charges in federal court last week and awaits sentencing.

Smith County Jailer Kenya Nicole Bush, while in her capacity as a jailer, provided a photograph to a suspect in a murder for hire conspiracy of a confidential informant the man planned to have killed. She also gave the suspect the informant’s last known address and information of his movement within the jail. Ms. Bush communicated with the suspect via cell phones, which inmates are not allowed to possess.

Smith County Jailer Shermeka Lagarde, charged with providing a cell phone to an inmate she became romantically involved with. She faces the felony charge of bringing a prohibited substance into a correctional facility.

Former Smith County Probation Officer Wayne Keller was arrested on three counts of official oppression in May 2006 following alleged inappropriate treatment of a female probationer. The victim described the incident as an unwelcome sexual advance that left her shaken.

James Finch, former Van Zandt County Sheriff’s investigator, was sentenced in July to 10 years in prison for aggravated assault, one year in prison for deadly conduct, five years in prison for aggravated sexual assault, two years in prison for unlawful restraint, 30 days in a county jail for criminal trespassing and 180 days in prison for endangering a child. The incident involved his ex-wife.

The paper pinned blame on a topic Grits has explored in the past, so-called "gypsy cops" who travel from agency to agency after being released or fired for misconduct. The most notorious "gypsy cop" was Tom Coleman, the villain and convicted perjurer from the renowned "Tulia" scandal, but there have been many other examples. Reported the Telegraph:

Timothy Braaten, Texas Commission on Law Enforcement Officer Standards and Education executive director, said part of the problem is that departments are not giving enough information to inquiring departments interested in hiring an officer. He said this is the reason bad cops and “gypsy cops” can move so easily between multiple departments in a short time.

“It is a bit scary, but I think we’ve found the enemy and it is us,” he said in January’s edition of the agencies’ publication Closer Look. “We refuse to take a stand and tell our cities, counties and elected officials that we need to require quality work history releases that are signed by the applicants and that we need to respond totally and completely to properly executed releases from other agencies.

I agree that's part of the problem. Not only should those records be released to hiring departments, they should be public so that the public can hold agencies accountable when they knowingly hire officers with bad records. Still, that alone won't prevent corruption as frequently we see officers who've spent years at the same agency accused of serious misconduct.

What makes this problem so intractable?

Perhaps most importantly, Texas' powerful police unions have worked for years to install weak discipline laws for Texas' 70+ cities that have opted into the civil service provisions in Chapter 143 of the Local Government Code, including most mid-sized municipalities like Tyler and all of Texas' large cities except Dallas and El Paso. As currently written, Texas civil service code for police and firefighters dramatically reduces accountability for officers in civil service cities.

For example, virtually all Texas cities that adopted the civil service code did so in the '40s or '50s, but in 1989 the code was changed to make most records about alleged police misconduct closed. The same records are public at more than 2,400 other Texas law enforcement agencies including county sheriff's departments. So in civil service cities, most misconduct allegations have been made secret, including many confirmed complaints, even though the same documents would be public at the local county sheriff.

Another provision of the civil service code forbids departments from considering an officer's past record of misconduct when making promotion decisions - only their score on a standardized test and years of seniority may be considered.

Even when chiefs and supervisors want to do the right thing, the best of them find it's difficult to break down the "Blue Wall of Silence" wherein many officers won't "snitch" on their brethren as a matter of principle. The ultimate solution here is for departments to make both cover up of misconduct by other officers and lying to supervisors an automatic firing offense.

The truth is, only a small percentage of officers commit most serious misconduct, but many more officers turn the other way or don't look closely when faced with possible wrongdoing by a colleague. Strict rules that put officers' jobs on the line when they fail to report misconduct or lie would root out bad eggs and give the "good cops" an incentive to support reform instead of prevent it.

Most people don't realize that many police chiefs can't make final decisions about when an officer should be fired in civil service departments. As often as not, binding arbitration overturns the chief's decision when he or she recommends firing an officer. Perhaps the most common reason arbitrators overturn chiefs decisions is when similar policy violators received disparate treatment - e.g., the department recommends firing one officer when another received only a three day suspension or even a written reprimand.

The best solution here is for cities to create a uniform disciplinary matrix that pre-identifies punishments for the most serious violations so they'll withstand later scrutiny. Punishments within a published matrix are more likely to have an arbitrator declare them reasonable because they're the same for everybody.

So yes, opening up information at TCLEOSE may be part of the solution, but the agency has historically been a toothless tiger, and local departments in the end bear most of the responsibility for preventing and punishing police misconduct.

To keep incidents like those described above from happening again, departments can't look to a state bureaucracy or background checks to fix supervisors' derelictions. Agencies must respond decisively and ruthlessly to corruption and serious misconduct whenever it arises in their ranks, and over time IMO that will contribute greatly to a preventive effect.