Catherine Netter, a former background investigator for the Guilford County Sheriff’s Office, spoke at a rally for law enforcement reform in Graham on Sunday. (photo by Carolyn de Berry)

The NC Sheriff’s Association is working to figure out how to deal with officers who engage in misconduct and are allowed to resign, avoiding discipline, and then move on to other law enforcement agencies.

The association formed a working group with 13 sheriffs from across the state in response to the wave of protests that erupted this summer after the death of George Floyd at the hands of a Minneapolis police officer. The group released a report with recommendations for reform on Oct. 21. A separate report with recommendations from the North Carolina Task Force for Racial Equity in Criminal Justice, a group that was appointed by Gov. Roy Cooper and also includes sheriffs, is expected today.

The Sheriff’s Standards Division and the Criminal Justice Standards Division both oversee certification, which sworn employees are required to maintain in order to remain employed by local sheriff’s offices. The Criminal Justice Standards Division also oversees certification for sworn employees of municipal police departments. Applicants for law enforcement positions are required to sign waivers allowing a division investigator to access prior employment information.

“However, even with that waiver, sometimes former employing law enforcement agencies are hesitant to share some information in personnel records with division staff or with a hiring agency,” the sheriff’s association acknowledged in its report. “Agencies may fear violation of personnel records laws for releasing too much information. Incomplete or missing information prevents division staff or a hiring agency from being able to conduct a thorough background investigation regarding whether an applicant should be certified and/or hired.”

Failing to share “critical personnel information” could lead to a phenomenon of officers “who are hired at an agency, engage in some misconduct, are allowed to resign, and then move on to be employed at another agency without the hiring agency being aware of the previous misconduct,” the sheriff’s association warned. The report uses the ethnically offensive term “gypsy law enforcement officers”; they’re also known as “wandering officers.”

“There’s a lot of agency-hopping that goes on,” Catherine Netter, who formerly worked as a background investigator for the Guilford County Sheriff’s Office, told Triad City Beat. “You get an application, and they’ve already worked at three or four different agencies. Your question is, ‘Why are they coming here?’”

Echoing the sheriff’s association report, Netter said access to an applicant’s employment record often depends on the whims and discretion of the agency that previously employed them.

“As a background investigator, you call the agencies,” she said. “You schedule a time to look at their files. The agencies control what you see.”

Netter learned firsthand how much sensitivity surrounds personnel information when she filed a discrimination complaint against former Sheriff BJ Barnes. The Guilford County Human Resources Department hired an outside lawyer to investigate Netter’s claim, and she provided the lawyer with other employee files to provide evidence of disparate treatment. Sheriff Barnes fired Netter for violating NCGS § 153A-98, a state law known as “Privacy of employee personnel records.”

Netter has marched with activists protesting police brutality in Graham, and has said she is considering running for sheriff in Guilford County in 2022.

To remedy the problem of “wandering officers,” the sheriff’s association is recommending that the General Assembly amend state law to explicitly state that civil or criminal liability is waived for agencies releasing employment records to a hiring agency or to the standards divisions at the NC Sheriff’s Association and NC Criminal Justice Education & Training Standards Commission.

Ben Grunwald, an associate law professor at Duke University, said he thinks updating the law to protect agencies from liability when they share employment information with each other is a good idea.

“When an officer is applying to a new job and the potential hiring agency will call up a previous employer and ask them for information, there is a fear about saying too much or exposing themselves to liability,” Grunwald said. “I think it’s good that they’re talking about waiving liability. I’m not sure how big a part of the problem this is. I’m doubtful that’s going to be a game-changer.”

Grunwald co-authored a recent study of police misconduct among 98,000 law enforcement officers in Florida over a three-year period that found officers who move from agency to agency are more likely to be fired from their next jobs and to receive a complaint for a “moral character violation.”

Overall, Grunwald said, the NC Sheriff’s Association’s recommendations come across as “making edits at the margins of our policing regime.”

Another recommendation made by the association is to launch a public database of decertified officers.

“Making a public searchable database of decertified officers might sound like a big deal, but it’s not really,” Grunwald said. “Officer decertification is incredibly rare. Lots of officers engage in misconduct without getting decertified. That would be a small database relative to the full magnitude of all police misconduct.”

To avoid agencies being unaware of past misconduct by prospective employees, the sheriff’s association report advises that “law enforcement agencies should be forthcoming with any and all personnel records and any other records regarding misconduct, discipline or reprimands, internal investigations, and commendations to the staff of the divisions and the hiring agencies.”

Missing from the report is any recommendation to hold agencies accountable for withholding critical information about past misconduct.

“I think it’s a potentially significant problem,” Grunwald said. “There is a band-of-brothers ethos in law enforcement. That ethos has only intensified in the past 10 years as the public has become more critical of law enforcement. Some officials might want to withhold information to allow an employee to get another job. And having no accountability mechanism might incentivize that.”

The report also includes a recommendation to change the name of a new state agency established by Gov. Roy Cooper to study police use of force. Following the death of George Floyd, Cooper established the Center for the Reduction of Law Enforcement Use of Deadly Force under the auspices of the State Bureau of Investigation. The sheriff’s association takes issue with the name of the agency, stating in the report that it “implies there is a need for a reduction of force by North Carolina law enforcement officers.” Eliding the fact that the center specifically focuses on “deadly force,” the sheriff’s report says, “We do not even have a uniform definition of the term ‘use of force.’ We cannot truly know whether there should be a call for reducing the use of force by law enforcement until all law enforcement agencies operate under the same definition, and data can be collected on those uses of force.” The report goes on to suggest that police use of force is not a serious problem by citing statistics showing that out of about 468 investigations into officers shooting civilians in North Carolina over the past decade, none resulted in conviction. The sheriff’s association recommends calling the entity “The Center for Analysis of Law Enforcement Use of Force” instead.

Dawn Blagrove, executive director of Emancipate NC, excoriated the report in a comment to ABC 11.

“Because the SBI, which is an arm of law enforcement, doesn’t find us to be in violation of force, and because the district attorneys that we elect all over the state of North Carolina never think that the police are at fault, so they don’t ever bring criminal charges against them, that means they’re doing everything okay,” she said. “It is so tone-deaf and so in opposition to everything that we’ve heard from everyone all across America in the last six months in this country.”

Other recommendations by the sheriff’s association that have been widely embraced by law enforcement and city leadership across the country since the death of George Floyd is to ban the use of chokeholds and imposing a duty to intervene when officers observe their colleagues using excessive force.

The sheriff’s association recommends a ban on “chokeholds, lateral vascular neck restraints, carotid restraints, or any other tactics that restrict oxygen or blood flow to the head or neck.” The recommendation includes an exception by citing a state law that authorizes police to use deadly force when they believe another person “presents an imminent threat of death or serious physical injury to others” and to prevent escape by a person in custody as a result of a felony conviction.

Most law enforcement agencies in the Triad already ban chokeholds or are in the process of doing so.

The Greensboro Police Department’s directive on subject control options states, “Officers are prohibited from using chokeholds or any technique intended to restrict an individual’s airway, breathing or blood flow unless the officer reasonably believes a situation exists in which deadly force would be appropriate to protect himself, or a third party.”

The Greensboro Police Department also requires officers to intervene physically and verbally to stop colleagues from using force that violates policy and training, and to report incidents to supervisors.

The High Point Police Department prohibits chokeholds except in situations when deadly force is authorized. Similar to Greensboro, High Point police officers are required to physically intervene when they witness colleagues using excessive force and to immediately report the incident to a commanding officer.

Earlier this year, Guilford County Sheriff Danny Rogers “authorized the adoption of specific policies barring chokeholds and strangleholds, and imposing an affirmative duty to intervene,” spokesperson Lori Poag said. She added that the agency is currently revamping all of its policies and procedures as part of its effort to gain accreditation through the Commission for the Accreditation for Law Enforcement Agencies, commonly known as CALEA.

Assistant City Attorney Lori Sykes said the Winston-Salem Police Department “prohibits the use of chokeholds and has established a duty to intervene.”

The Forsyth County Sheriff’s Office’s use-of-force policies also prohibit the use of chokeholds, and requires officers to intervene to stop colleagues from using excessive force “when it is safe and reasonable to do so.” The policy also requires officers to report to supervisors when they intervene.

The Forsyth County Sheriff’s Office did not respond to a request for its policies before the deadline for this story.

Grunwald cited a recommendation by the sheriff’s association to add new forms “to ensure agencies are requesting and providing personnel records and other records in the hiring process” as emblematic of the gulf between official reforms and the demands raised during the massive protests this past summer.

“It shouldn’t come as any surprise,” he said. “None of these recommendations make it easier to fire officers who engage in misconduct. It doesn’t do anything to improve investigations of police misconduct. It doesn’t do anything to address the fact that what the public thinks should count as misconduct is different from what law enforcement believes should count as misconduct. It doesn’t address the scale of law enforcement, which goes to the demands of the defund movement. It feels like the proposals are designed to improve how we shuffle paperwork, but they do little to address the bigger problem — that the paperwork itself is often flawed.”

This story was updated on Dec. 3 at 10:31 a.m. to include the Forsyth County Sheriff’s Office’s policies on chokeholds and duty to intervene.

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