Case Explained: Wandering officers not being tracked or prevented in NC – Legal Perspective

Nearly two decades ago, Catherine Netter, formerly a detention officer with the Guilford County Sheriff’s Office, volunteered to assist the agency’s background investigator for law enforcement applicants. She took a week-long training course and found she enjoyed the work. Eventually the sheriff’s office selected her to be a full-time recruiter and background investigator.

Netter, who has since switched careers and moved away from North Carolina, attests to the struggles of finding information about an officer’s past. Part of her job involved going to applicants’ previous employers and reviewing their personnel files and relevant internal affairs investigations.

But not every important detail in an officer’s past would make it into those files.

“The agency controls what you see,” Netter explained in an interview with Carolina Public Press.

A persistent concern, she said, was that some agencies purge their records after a certain number of years. Another problem was that an officer’s past misconduct might not have made it into their personnel file at all.

“Disciplinary action can sometimes vary based on demographics or based on relationships to the power structure,” Netter said.

“So, not everything makes it into a personnel file for everybody in the same equitable manner.”

If she got the sense that something was missing, she’d make it a point to press applicants about their work history.

While Netter said she didn’t experience it directly, some law enforcement agencies are reluctant to release any information contained in an officer’s personnel file at all, for fear that it would open them up to legal liability for sharing confidential information.

At the conclusion of her investigation, Netter would provide a recommendation on whether to hire that applicant. At least once, she said, an applicant whom she didn’t recommend for hire ended up getting the job anyway. 

The article is the second in the three-part investigative series Stray Cops from CPP, examining the problem of wandering officers. These are law enforcement officers who are fired from one department or resign under a disciplinary cloud and find employment elsewhere. This article explores the systemic reasons why these officers continue to find work and the potential risks they pose to the public and the agencies that hire them.  

The first article in the series examined the scope of the issue in North Carolina and explored the kinds of agencies most likely to hire wandering officers. The final article in the series will look at potential solutions. 

Processes for hiring and certifying NC cops

Officer hirings and firings, and certifications and decertifications, are two wholly different processes carried out by separate government entities.

Individual law enforcement agencies make hiring and firing decisions. Those agencies must notify the state whenever they hire an officer or when one leaves the department, but the state doesn’t have a direct role in the hiring or dismissal of most officers.

What the state can do, through its two Education Standards and Training Commissions, is grant, deny and revoke certifications for all law enforcement officers working in North Carolina. 

A person can’t work as a police officer or sheriff’s deputy unless he or she holds certification from the appropriate commission.

One of these commissions is dedicated solely to employees of sheriff’s offices. Everyone else is certified by the Criminal Justice Education Standards and Training Commission.

A commission’s decision to suspend, revoke or deny an officer’s certification would prevent that person from continuing to work in law enforcement. An agency’s decision to fire an officer, however, wouldn’t automatically hold the same weight.

Firings that don’t result in decertification are a key mechanism in the creation of wandering officers.

The state also sets minimum standards for the hiring and certification of law enforcement officers.

In North Carolina, certification of police officers and sheriff’s deputies requires that they must: 

• Be U.S. citizens
• Be at least 20 years old
• Have a high school diploma or equivalent education
• Possess “good moral character,” a vague standard which has only been partially defined by previous judicial rulings
• Not have been convicted of a felony or any other crime with a punishment of two or more years, which would prohibit them from possessing a firearm 

Applicants with past misdemeanor offenses might still be hirable depending on the severity of the crime and how long it had been since those convictions. 

The state mandates that agencies conduct background checks on all applicants, but it doesn’t set limits on agencies’ ability to hire or retain officers who were fired from a past employer, are currently under criminal investigation or have received accusations of misconduct in civilian complaints or lawsuits.

Likewise, the two standards commissions aren’t required to deny or revoke certifications based on those factors.

State rules outline plenty of circumstances that “may” trigger decertification, but very few that “shall” — leaving the final decision up to the commission’s discretion.

This lack of definitive guidance in state rules has also allowed hundreds of previously fired officers to continue working in North Carolina.

When the state intervenes

So why not mandate that the state decertify officers if they are dismissed from an agency?

A good reason for not automatically decertifying them exists, said Eddie Caldwell, general counsel for the North Carolina Sheriff’s Association — one of the most influential lobbying groups in the state legislature.

If decertification was mandatory, officers could lose their careers for reasons that wouldn’t necessarily preclude them from being good employees somewhere else, Caldwell said. Current state guidelines also factor in the potential for an officer to recognize and learn from past mistakes.

“You could have an officer who comes in late three days in a row, and an agency head could say that’s unacceptable,” Caldwell said.

“Well, that doesn’t necessarily mean that person lacks training or lacks ethics or morals to be a law enforcement officer. They just made some mistakes. So that officer could easily go to another agency and be on time and not be a problem.”

For the reason that Caldwell outlined, the current state guidelines are mostly a list of situations under which a certifying agency “may” revoke, suspend or deny certification.

The only instances in which the state must decertify would be when an officer is convicted of a felony or convicted of a lesser crime with a sentence of more than two years imprisonment. Those certified with the Sheriff’s Standards Commission will also be decertified if they fail to keep up with their training requirements and drug screens.

Each commission has staff who approve applications for certification and conduct investigations to determine whether officers still meet the requirements for certification. Those investigations are reviewed by what’s called a Probable Cause Committee, made up of a subsection of commission members, who make the ultimate determination on whether to decertify an officer.

“(The Standards Commissions) aren’t evaluating if this person is the perfect employee,” Caldwell said. “They’re evaluating, ‘Do they meet the minimum standards?’”

An officer who has been denied certification may contest the commission’s decision to an administrative law judge, and the commission may reevaluate its decision based on the judge’s recommendation.

Officers who dispute the basis for their termination from an agency may also seek a name-clearing hearing, which may get factored into a future employer’s decision to hire them.

Why do agencies hire wandering officers?

Ben Grunwald, an expert on criminal procedure and professor at Duke Law, co-authored a landmark research paper on wandering officers in Florida in 2020.

The study, which the Yale Law Journal published and news media reports have cited widely, found that about 3% of Florida’s sworn law enforcement officers in any given year between 1988 and 2016 had been previously fired from another agency. A significant majority of those officers had been dismissed for misconduct.

In an interview with CPP, Grunwald said he can’t say much about the prevalence of wandering officers or their behaviors outside of Florida without further research. But little reason exists to think Florida is an outlier when it comes to the problem.

One significant question the paper addressed was why agencies hired these officers in the first place. Identifying the reasons behind the phenomenon is the first step in fixing the issue.

“It’s kind of a fundamental question here,” Grunwald said.

“It’s hard to know exactly what the policy intervention should be when you don’t know what explains most instances where police departments are hiring wandering officers.”

Grunwald did suggest a few hypotheses, however.

It could be that agencies do not know they are hiring a wandering officer, he said. In that case, it would be an information problem, something which Netter alluded to.

The North Carolina state legislature, with the support of the Sheriff’s Association, passed a law last year that aimed to address that issue. It required agencies to review applicants’ complete personnel files going back five years before hiring them as law enforcement officers. It also granted legal protections to agencies that provide that information for the purpose of a background investigation.

“That provides protection to the agency where (the applicant) used to work,” Caldwell said, “because now they are required to provide either a copy or access to those records.”

That law, however, doesn’t apply to internal affairs files, nor does it require agencies to provide proof to the commissions that they are following those new rules.

Aside from a lack of information about an officer’s past, agencies might know they’re hiring a wandering officer, but they don’t have any better alternatives because of a lack of quality candidates.

Vacancy rates at law enforcement agencies across the country have remained high since 2020, and pay – especially in North Carolina – has remained stagnant.

Agencies struggling to fill positions might be tempted to overlook an officer’s checkered past. On the flip side, wandering officers with limited job prospects could be more willing to work for lower pay in suboptimal conditions.

This problem seems to be more of an issue in rural parts of the state, where wandering officers were most likely to work, according to CPP’s analysis based on 2022, the last year for which the state’s employment data included information about dismissals.

Finally, it could simply be that agencies are well aware of who they are hiring, but they do it anyway. In that scenario, they’d need to be educated about the risks associated with hiring wandering officers, Grunwald said.

Are wandering officers riskier hires?

Grunwald’s research found that, at least in Florida, wandering officers tended to be riskier hires.

“We found that our wandering officers were twice as likely to get fired again and twice as likely to receive serious complaints for misconduct, including complaints for integrity-related issues and physical and sexual misconduct,” Grunwald said.

“What we conclude from those numbers is that when a police department decides to hire someone who’s previously been fired, they are taking an increased risk that that officer may engage in subsequent misconduct.”

North Carolina’s employment data doesn’t include details about disciplinary actions that didn’t result in termination, even if they resulted in resignation. But the data does show that officers who were fired from a previous job were significantly more likely to get dismissed from their next law enforcement job, compared to veteran cops with no dismissals on their record and rookie officers.

Hiring a wandering officer poses a risk, not just for the general public who faces the potential of abuse at the hands of that officer, but also for the hiring agency, which could be found liable if it were later sued for that officer’s misconduct.

If the question of morality can’t convince a law enforcement agency not to hire a wandering officer, the potential of having to pay out a lawsuit settlement might, attorney Keisha James said.

James works for the National Police Accountability Project, which litigates cases of police misconduct across the country. She represented the plaintiffs in their lawsuit against wandering officer Jeffery Edwards, who was accused of using excessive force while he was a deputy at the Washington County Sheriff’s Office. Edwards is currently a deputy in nearby Tyrrell County. 

Reporting from CPP revealed that the State Highway Patrol fired Edwards for misconduct before the sheriff’s office in Washington County hired him. 

Even though he’s no longer employed in Washington County, the plaintiffs suing Edwards in his individual capacity also filed suit against the Sheriff’s Office for having negligently hired and trained Edwards. In addition, they are suing the Sheriff’s Office and Town of Plymouth for having trained the other officers who were present at the scene and didn’t intervene. 

“The bottom-line argument is that this costs money (for local governments),” James said.

“A better way of tracking and screening (wandering officers) will cut costs. I think there’s no way around that, and I think sometimes that is a more persuasive argument than maintaining credibility and integrity and all that.”

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