by Dick Hall-Sizemore

There is a tendency in government to enact reform or establish new programs and then move on. Often, there is little or no circling back, by government or the media, to examine how the changes have been implemented or what effect they have had.

Over the course of the next few weeks, I intend to discuss the implementation of some of the changes in the criminal justice system enacted by the 2020 General Assembly. As with any major changes in a complex system, two years will have been insufficient time for many major effects to become evident. However, it is fair to examine how well their implementation is progressing.

Of all the criminal justice and law-enforcement reforms considered by the General Assembly in its 2020 Special Session, the need to get the “bad apples” out of law enforcement probably was the one that attracted the most support from all factions, including the law enforcement community.

A major problem was the ability of law-enforcement officers with troublesome histories to move on to another agency after being fired by one.

The 2020 General Assembly took two actions to address this problem. First, it enacted legislation that required law-enforcement agencies considering applications from persons with experience in other law-enforcement agencies to formally request information from all prior employing agencies regarding an applicant’s criminal history and job performance, including any excessive use of force or other official misconduct. The legislation also required all the prior employing agencies to respond to such requests. Such inquiries would seem to be common sense, but apparently applicants were hired often enough without such inquiries being made that the legislation was deemed necessary.

The other, and more important, action taken by the legislature was the expansion of the law-enforcement officer decertification process.

Virginia law sets out the minimum qualifications for employment as a law-enforcement or jail officer. Among them are not having been convicted of a felony offense or of certain misdemeanors. After being hired, all law-enforcement and jail officers must complete the minimum training as set out in regulations developed by the Department of Criminal Justices Services (DCJS) and approved by the Criminal Justice Services Board (CJSB), including successfully completing statewide certification examinations.  The training standards include the initial training and periodic continuing education. To remain eligible for employment as a law-enforcement officer or jail officer, an individual must be certified by DCJS.

The law also sets out the circumstances in which an officer is to be decertified. Officers subject to decertification may request a hearing with the CJSB executive committee. If that appeal is unsuccessful, the individual may appeal to a circuit court. Once a decertification has become final, it is in effect for at least five years.  After the five-year period is completed, the individual may petition the CJSB for certification reinstatement.

Before 2020, the circumstances under which an officer could be decertified required:

• Conviction of a felony;
• Conviction of a misdemeanor involving moral turpitude, sex offenses, or domestic assault;
• Failure to complete or maintain the minimum training standards; or
• Failure to pass, or submit to, a drug screening.

Sheriffs and chiefs of police were required to notify the CJSB within 48 hours of any employee being terminated or resigning as a result of any of the above actions. The Board could also initiate decertification for any officer not in compliance with the minimum training standards.

The 2020 legislation significantly expanded the grounds for decertification  It directed DCJS, under the direction of the CJSB, to adopt statewide professional standards of conduct for law-enforcement and jail officers, along with due process procedures for decertification. The legislation went on to add the following grounds for decertification for an officer who is terminated or resigns:

• For a violation of state or federal law;
• For engaging in serious misconduct as defined in statewide professional standards adopted by the Board;
• While such officer is the subject of a pending internal investigation involving serious misconduct; or
• For an act committed while in the performance of his duties that compromises an officer’s credibility, integrity, or other characteristics that constitute exculpatory or impeachment evidence in a criminal case.

The legislation specified that the changes in the decertification criteria would apply “only to offenses or misconduct committed after the effective date of this act” (March 1, 2021).

Data provided to Bacon’s Rebellion by DCJS shows that, between 1999, the first year the decertification process was in place, and March 1, 2021, when the changes went into effect, 82 law-enforcement and jail officers were decertified. Between March 1, 2021, and August 1, 2022, 75 officers had been decertified, and an additional 28 decertifications were in process or were on appeal.

There were recent decertifications in all areas of the Commonwealth. They involved 49 different localities or agencies, ranging from Accomack County on the Eastern Shore to the town of Bluefield in Southwest Virginia, and from Alexandria in Northern Virginia to the city of Emporia on the North Carolina border. Nevertheless, there was a regional pattern. With only a few exceptions, the vast majority of the decertifications occurred in jurisdictions in the eastern portion of the Commonwealth. Furthermore, with the exceptions of Emporia and Powhatan County (one each), there were no decertifications in Southside localities, the area that extends from below Charlottesville south to the North Carolina line and from Sussex/Isle of Wight on the east to Martinsville on the west. Before too much is read into this data, it should be kept in mind that the new provisions have been in effect for less than 18 months.

There were a wide variety of reasons stated for decertification. Most commonly cited (29 times) was “untruthful statements during IA investigations.” Alarmingly, there were seven officers decertified for “falsifying documents.” A large number were decertified due to conviction of violating a state law. Several of these convictions, such as misdemeanor assault, DUI, and violation of computer privacy, likely would not have been grounds for decertification under the previous law.

As mentioned earlier, the legislation directed DCJS and the CJSB to develop statewide professional standards of conduct for law-enforcement and jail officers. The legislation set out a timeline whereby DCJS would have promulgated regulations related to the standards of conduct by mid-December 2021. DCJS missed this deadline. The Criminal Justice Services Board did not approve the regulations until its meeting on June 16, 2022.  As of July 27, 2022, the proposed regulations were still in the Attorney General’s office for review as to constitutionality and possible conflict with other laws. After that review is complete, the proposed regulations go to the Governor’s office for review. If approved there, they are posted on the Virginia Town Hall for public comment before becoming  final.  It will likely be several months before statewide professional standards of conduct for law enforcement and jail officers can become effective.

The delay in the implementation of the professional standards was not an obstacle for many of the decertifications that have occurred since the legislation went into effect. Most of the types of “serious misconduct” in the standards that could lead to decertification would also be violations of law, which are separate grounds for decertification. As the draft of the proposed standards acknowledges, “Some types of serious misconduct are, technically speaking, already accounted for in Virginia’s decertification statute because they constitute violations of state and/or federal law.”

Furthermore, one of the grounds for decertification is broadly worded: “an act committed while in the performance of his duties that compromises an officer’s credibility, integrity, or other characteristics that constitute exculpatory or impeachment evidence in a criminal case.” In the list of decertifications since the effective date of the new legislation, that particular provision was often cited as the basis for decertification.

Nevertheless, the implementation of the statewide professional standards of conduct will strengthen the ability to decertify officers because those instances of “serious misconduct” will become grounds in and of themselves for decertification and will not require a conviction to be implemented.

In summary, the legislation enacted in 2020 seems to have been effective in increasing the ability to rid law enforcement and jails of the “bad apples”.

My Soapbox

Although the expanded decertification process may be more effective in enabling the Commonwealth to remove troublesome law-enforcement and jail officers from their positions and prevent them from being re-employed in those roles for at least five years, there are two major possible weaknesses in the legislation. In addition, there is one step the Commonwealth could take with regard to decertifications that might help strengthen public confidence in the integrity of the criminal justice system.

Decertification trigger—As the statute is written, a police chief or sheriff must notify DCJS when an officer has committed any of the actions that would constitute grounds for certification only if the officer has been terminated due to that action or if the officer resigned in anticipation of being found to have committed the action or in anticipation of an investigation into his conduct. If an officer committed one of the offenses, such as lying to Internal Affairs in order to provide cover for a fellow officer being investigated (“the Blue Wall”) and the police chief or sheriff did not deem such conduct as deserving termination, but a lesser sanction, such as a reprimand or suspension without pay, that officer would not be eligible for decertification. The same would be true for conviction of a misdemeanor other than one involving “moral turpitude,” a sexual offense, or domestic violence.

A valid argument could be made that, if the officer’s employer did not view the conduct in question as serious enough under the circumstances to warrant dismissal, the officer should not have to face decertification. Therefore, elected officials and the public must be assured of the integrity and judgment of the chief law-enforcement officer or jail administrator in their locality.

Excessive use of force—One of the motivations behind the criminal justice reforms of recent years has been concern over the use of force, especially “excessive force,” by law enforcement. Therefore, it is somewhat surprising that legislation passed in 2020, including the decertification expansion, avoided directly dealing with the concept of “excessive force.”

Obviously, “excessive force” is a subjective term. What is “excessive” in the eyes of one person may be appropriate from the perspective of another. Also, the force that is used by law enforcement may be “excessive” in some circumstances, but not so in other instances.

The 2020 Special Session of the General Assembly enacted legislation dealing with the use of force by law enforcement that had the following provisions:

• Prohibition of the use of neck holds, except in defined circumstances;
• Conditions under which deadly force can be used; and
• Requiring a law enforcement officer who observes another officer using excessive force to intervene to prevent the further use of such force and to report the use of excessive force to his department.

It is curious that the law requires an officer to intervene upon observing another officer using “excessive force” but does not address the officer using “excessive force” in carrying out his duties. One could argue that it would be difficult to define “excessive force” in law. But the legislation does provide a definition:

“Excessive force” means any force that is objectively unreasonable given the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

It seems there is an assumption that local police and sheriffs’ offices have policies dealing with excessive force. For example, the legislation referred to at the beginning of this article, dealing with inquiring about an applicant’s prior experience, refers to an investigation of the officer’s conduct involving alleged excessive use of force.

Given the problems statutorily prohibiting excessive use of force, it would seem that the most appropriate vehicle for dealing with the issue would be the statewide professional standards of conduct. The proposed standards do address it, but in oblique language, not using the term “excessive force.”  The list of “serious conducts” that would be prohibited includes:

(F) Engaging in a pattern of acts or a single egregious act showing an intentional or reckless disregard for the rights, safety, or well-being of others, including but not limited to repeated use of prohibited practices for law-enforcement officers during an arrest or detention (Va. Code Title 19.2, Chapter 7.1) or violations of individual rights as guaranteed by the Constitution and laws of the United States and the Commonwealth of Virginia.

The list of officers decertified since the 2020 legislation became effective includes one decertified due to  “departmental use of force violation.” The legal basis provided was “terminated or resigns for a violation of state or federal law.”  Unlike most entries using this basis, this one does not cite the specific Code section that was violated. Unless it was the new statute dealing with the requirement to intervene when another officer is using excessive force, it is not clear what state law was violated. When the statewide professional standards of conduct become effective, there will be a clear basis for decertifying an officer for excess use of force, although it might be helpful if the Code definition of “excessive use of force” were somehow incorporated into the standards of conduct.

Public confidence—The list of officers decertified is public information and is available from DCJS upon request. However, many members of the public may not be aware of its availability or may be intimidated by the FOIA process. (In reality, all one has to do is ask. The agency is supposed to provide information upon request without the requester having to formally invoke the FOIA.) DCJS maintains the decertification list as part of its database of officer compliance with mandatory training. It should not be difficult for the agency to make the decertification list available to the public on its website. Doing so could provide the public some assurance that the public safety community is making a concerted effort to rid itself of “bad apples.”