BY SAM STECKLOW
INVISIBLE INSTITUTE FOR THE VIRGINIA CENTER FOR INVESTIGATIVE JOURNALISM AT WHRO 

This story is being co-published by the Virginia Center for Investigative Journalism at WHRO and the Invisible Institute, a Chicago-based nonprofit public accountability journalism organization.

In the wake of George Floyd’s murder by Minneapolis police, Virginia lawmakers took action on reports that state policing regulators failed to strip the police certifications from dozens of officers with criminal convictions ranging from embezzlement to possession of child pornography and sexual assault.

The Legislature passed a bill in October 2020 requiring police departments to complete internal investigations even if officers resign during them, and to provide any records of misconduct to new prospective employers for officers; strengthening the requirements for agencies to send reports of misconduct to state regulators; expanding the offenses for which officers can be stripped of their certifications; and requiring a state board to write a statewide standard of conduct for policing.

“This will keep them from job jumping,” said state Sen. Mamie Locke, D-Hampton, one of the main sponsors.

Three years later, barely anything has changed. The statewide code of conduct draft has languished in the review stage for over a hundred days past its deadline. While the state Criminal Justice Services Board (CJSB) has increased the number of officers it decertifies, critics accuse the board of inconsistently applying its expanded abilities to decertify officers.

And now, the Virginia Department of Criminal Justice Services (DCJS), which houses the CJSB, refuses to publicly release basic data about police employment — data which it previously released, spurring this new reform law in the first place.

At the same time, Gov. Glenn Youngkin has introduced programs to encourage officers to move departments or even across state lines to Virginia — the exact “job jumping” that Sen. Locke warned against.

Virginia’s lack of transparency puts it in the minority

The data that DCJS refuses to release consists of some of the most basic information about public employees: their names and where they’ve worked. Over 30 states make this information public, including Virginia’s neighbors Kentucky, Maryland, North Carolina, Tennessee and West Virginia. (Washington, D.C., does not have a traditional police certification system, but the district government makes historical payroll data public, which serve a similar function.)

These states have released police data to a national news coalition convened by Big Local News, a program of Stanford University's Journalism and Democracy Initiative.

Analyses by reporters and researchers with access to the names and employment histories of police officers has revealed significant gaps in state oversight systems. The lax scrutiny has allowed officers with troubled pasts to continue to be rehired because state regulators failed to take action unless officers were convicted of crimes. Other states have allowed them to continue working in law enforcement even after criminal convictions.

These officers are termed “wandering officers”: those who leave one police department after committing misconduct and easily find work at another.

In Texas, access to the state’s data showed researchers that the notification system allowing the state to monitor wandering officers is “broken.” In Florida, which releases the most robust data in the country, researchers showed that wandering officers are not only more likely to be fired at their new department than other officers, but also to rack up even more discipline based on failing assessments of their “moral character.” They found that, at “any given point” during their three-decade-long study, an average of 3 percent of all of Florida’s officers — around 1,100 — had previously been fired by another agency.

Under then-Gov. Ralph Northam, Virginia released police data on state certification and employment history to news outlets like The Virginian-Pilot and the Washington Post. It denied a request for the data made last year by the Invisible Institute and the Virginia Center for Investigative Journalism at WHRO.

Wandering officers

Papers from the Richmond Police Department’s Internal Affairs Division final report regarding Seth Layton’s violation of the department’s policy on the use of force. Source // OpenOversight VA

In September 2020, as the Legislature was debating its reform bill, Richmond police officer Seth Layton resigned from the capital city’s police force while under investigation for pepper-spraying a protester in the face during a racial justice uprising earlier in the year.

The department completed the investigation after he left, eventually finding that he had violated the department’s use of force policy, according to a copy of its report later made public. But Layton resigned before he could even be interviewed by the Internal Affairs Division.

After resigning, in his own words, he “immediately” transferred to the Virginia State Police because he was “already certified as a police officer in Virginia,” he later said in a deposition.

Four months later, while he was still in training to be a state trooper, he and his training officer shot and killed Xzavier Hill, a Black 18-year-old who fled a traffic stop while speeding through rural Goochland County.

Layton was publicly identified as a wandering officer through the painstaking work of OpenOversight VA, a nonprofit that has requested employment rosters from most law enforcement departments in the state. The watchdog organization analyzes employment data and disciplinary actions across more than 200 law enforcement agencies in Virginia.

When Layton’s name was released by the state police after weeks of agitation by Hill’s mother, LaToya Benton, OpenOversight VA Executive Director Alice Minium ran it through the various roster databases the nonprofit maintains, and saw an officer with his name was previously with the Richmond police. A few months later, through a lawsuit she was part of regarding the Richmond Police Department’s excessive force during the 2020 protests, Minium gained unusual access to the Internal Affairs investigation into Layton.

In Virginia, internal police records about misconduct allegations are almost always kept secret. Minium thinks it was available to her on a shared cloud drive “by accident, both on the part of my lawyer and on the part of the City Attorney,” she wrote in an email.

Using material found in the internal affairs report, OpenOversight VA was able to confirm Layton’s disciplinary record in Richmond. “He simply quietly left the [Richmond police] department, [and] was hired by the State Police,” Minium wrote.

A few months after being hired by the State Police, Layton was involved in the traffic stop and fatal shooting of Hill. Layton and his partner both fired at Hill, according to a grand jury report to the Goochland County commonwealth’s attorney. Layton and his training officer told investigators that Hill, who was stuck in an immobilized car, was pointing a gun at them. A jammed gun with a single bullet in the chamber was found on the passenger seat beside Hill.

The grand jury declined to bring charges against Layton or his partner. An internal investigation by the Virginia State Police also found no wrongdoing, and a lawsuit filed by Hill’s mother was dismissed. She has filed an appeal.

Having access to state certification and employment history data is “a prerequisite to transparency,” Minium said in an interview. Some officers are a threat to their communities, she said.

“I think we have a right to have the information about what they do and who they are,” she said. “We can’t stop law enforcement from abusing its power, but we can watch as they do it, and document it. When we know who is doing it and what actually happened, it feels like we get a little bit of our dignity back.”

Layton declined a request for an interview through the Virginia State Police’s public relations director, Corinne Geller. Geller also declined to answer whether the agency was aware of the Richmond police’s ongoing investigation at the time of Layton’s hire, writing that she could not “discuss any particular employee’s ‘hiring process,’ as that is a personnel matter.”

New standards delayed for years

The General Assembly gave the Criminal Justice Services Board new powers in 2021, lowering the threshold for taking certification away for misconduct. But watchdogs say the new law left significant loopholes.

The new threshold for decertifying an officer requires that the board find an officer engaged in “serious misconduct as defined in statewide professional standards of conduct adopted by the Board,” or while “the subject of a pending internal investigation” into such serious misconduct, as defined by the CJSB.

But the Department of Criminal Justice Services has failed to adopt any such standards, or officially define any such serious misconduct — which would create more pathways to decertification. The agency is more than two years past its state-imposed deadline to establish new, tougher standards for decertification.

Draft language that would allow the board to decertify an officer for “knowingly and intentionally engaging in … the use of excessive force” was proposed in June 2022. But the CJSB took nine months to write that draft, and then its draft standards sat on the desk of Secretary of Public Safety and Homeland Security Terrance Cole, an appointee of Gov. Youngkin, for another year and a half until the proposal was finally approved for public comment Jan. 16.

In a letter sent in January to Sen. Locke and her cosponsor, Secretary Cole blamed the delay on the Department of Planning and Budget (DPB), which noted potential issues with the phrase “serious misconduct” in its review. Cole also said the process was delayed by the “lingering impacts and 

limitations” of the COVID-19 pandemic. In the end, as Virginia Public Media reported, no significant changes were made after the planning department raised its concerns.

“The public deserves to have the protection of knowing that officers who commit serious misconduct can and will be decertified, and will no longer be working on any street in Virginia,” said former ACLU of Virginia director Claire Guthrie Gastañaga, who worked on the 2020 reform efforts as well as previous, failed iterations.

The extended delay means, Gastañaga said, that “there are potentially officers out there who should not be on our streets, who are on our streets.”

Access to DCJS’s data would also benefit investigations into wrongful convictions, said Juliet Hatchett, a law professor at the University of Virginia, in an interview.

“Wrongful convictions are enormously difficult to investigate,” said Hatchett, the associate director of the law school’s Innocence Project. “Far from all cases involve bad police officers, but when they do, it can really expedite an investigation if we can get access to an officer’s employment background.

“This is a huge piece of really important information that can help us identify wrongful convictions faster and more efficiently,” she said.

Christian Martinez, Youngkin’s press secretary, did not respond to specific questions for this story about the delayed regulations or the change in administration policy around releasing data. “The regulations were unanimously approved by the workgroup and the DCJS board after a comprehensive review to ensure compliance with statute and application statewide,” Martinez said in a statement. “The administration has an unwavering commitment to bolster law enforcement ranks across the Commonwealth by investing and recruiting the finest officers from Virginia and across the Nation.”

Representatives for Cole did not respond to requests for comment.

Would undercover officers be revealed?

In June 2022, a special, state-appointed commission found Virginia’s policing regulators at DCJS have a “lack of standardization, transparency, and accountability” that “leads to significant differences in policing culture and practices across jurisdictions.”

The wide-ranging report by the Virginia Advisory Committee to the U.S. Commission on Civil Rights also found that state regulations for overseeing law enforcement officers are filled with loopholes, and often “falls short of the standards set for other vocations, such as law or medicine.”

The “significant differences” in police transparency have waylaid the work of OpenOversightVA. While hundreds of agencies throughout the state have provided their records, some departments have made claims — accepted by judges — that they need to keep the identities of the majority of their officers secret because any of them could be undercover at any given time.

The Chesterfield County Police Department denied the bulk of the organization’s request for its employee rosters, redacting the names of every officer at or below the rank of lieutenant.

“Officers in the positions of lieutenant and below are moved in and out of undercover operations on a daily basis,” a lawyer for the county wrote. Under cross-examination from OpenOversight VA’s attorney, Andrew Bodoh, representatives from the department acknowledged they included officers who may simply be driving unmarked vehicles, and wearing vests or other items identifying themselves as police, in their definition of “undercover.”

Chesterfield County General District Court Judge Jennifer Rosen upheld the denial, finding that even “a recruit could be promoted tomorrow” into an undercover position, justifying the full denial.

“They want to ignore the plain understanding of the law,” Bodoh told the Richmond Times-Dispatch. Rulings of the general district court don’t set precedent, and he’s filed an appeal to the Chesterfield County Circuit Court. However, since the case was filed, several more police and sheriff’s departments have made similar arguments, some of them successfully. Minium isn’t sure if the nonprofit will have the funds to challenge these denials.

The department’s arguments also don’t ring true to RaShall Brackney, a former Pittsburgh police commander who later became the chief of the Charlottesville Police Department from 2017 to 2021. Undercover policing today doesn’t look like the deep undercover days of tracking John Gotti or earlier mafia dons, she said, and even officers making undercover drug busts will have to use their name in court. “If I'm undercover at some point, I'm out in the community. I'm making an arrest. I'm going to court,” she said.

The argument about harm to undercover officers “has always been out there,” she said. “We've yet to find statistics where that has occurred.”

Even when individual agencies cooperate, tracking officers is “a very slow and tedious process, because the amount of officers that rotate is unbelievable,” Minium said. Under the best circumstances, the painstaking work is also expensive.

Records go from private to public and back again

Concerns over wandering cops have often drawn scrutiny from journalists and state officials. In 2012, the Virginia State Crime Commission heard testimony that officers with criminal convictions were allowed to keep their police certifications, a concern of groups like the Virginia Association of Chiefs of Police.

In 2020, The Virginian-Pilot’s reporting again showed that lax enforcement by the CJSB and DCJS resulted in officers with serious criminal convictions maintaining their certifications. These convictions, under the law, should have resulted in automatic decertifications. The reporting ultimately prompted the state reforms.

When the newspaper first requested the information in 2015, DCJS first agreed to release it with some restrictions — the data couldn’t be directly published or shared — but then forced The Virginian-Pilot to sue the agency to enforce that agreement. A judge ruled that DCJS had to honor its agreement.

In response to the judge’s ruling, lobbyists for law enforcement agencies pushed a measure through the state Senate that would have made the names of all police officers in the state secret under the state Freedom of Information Act. In the face of strong opposition, the bill failed in the state house.

The data that Virginian-Pilot reporter Gary Harki eventually got was disorganized, and he moved onto other projects. After George Floyd was murdered, however, he returned to the project and sent a new request in July 2020 which returned better data, with the same use restrictions. A month later, a reporter for the Washington Post received the same data, under the same restrictions, records released by DCJS show.

But DCJS’s response to recent public records requests have bounced between transparency and full secrecy. In July 2022 — months after Youngkin took office — DCJS fulfilled a request from a reporter with American Public Media, releasing data on officer certifications and employment history without restrictions.

Three months later, DCJS denied a similar request filed by a reporter with the Big Local News coalition, claiming an exemption for personnel records.

Beyond the reversal in policy, public records advocates question DCJS’s interpretation of Virginia’s Freedom of Information Act.

In a 2022 case called Hawkins v. South Hill, the Virginia Supreme Court began the process of settling a long-running dispute over language in the state Freedom of Information Act exempting “personnel information concerning identifiable individuals,” the exemption cited by DCJS to withhold the names of police officers.

In the Hawkins case, the justices set out rules for records custodians and other courts to interpret this provision: if the exemption for “personnel information concerning identifiable individuals” is to be invoked by a public body in response to a FOIA request, the standard they have to meet is that release of that material would be an “unwarranted invasion of personal privacy.” If not, they are obligated to release the record.

“Before Hawkins, there was no definition at all about what was a personnel record,” said Megan Rhyne, an attorney and the executive director of the Virginia Coalition for Open Government. “So that meant that public bodies have just been steadily shoehorning anything and everything into that exemption.”

Given the new standard of an “unwarranted invasion of personal privacy,” Rhyne questions whether the DCJS denial comports with the law.

“If someone is certified (as a police officer), that is certainly not a private fact,” she said.

DCJS Director Jackson Miller — a former Republican state delegate and police officer who was appointed by Youngkin in 2022 — declined to give an interview about the agency’s about-face and denials. Laureen Hyman, an assistant to Miller, in an email statement said that it has been DCJS’s “longstanding policy” under both parties that the information contained in its database about police training and employment “is considered personnel information and the primary possession of the criminal justice agencies involved.”

Hyman added that DCJS “is exercising its discretion to not release this information. Any release of information that was previously done was done by another administration and we cannot respond to why a decision from another administration was made.”

Hyman did not respond to follow-up questions about why the data previously had been released under Youngkin’s administration.

What are the impacts of more officers “wandering” without public oversight?

Experts have raised alarms that the struggles of some departments to recruit and hire new officers could allow more officers with misconduct histories to find work in law enforcement.

Youngkin introduced a program to expedite lateral transfer training last year, in order to attract officers from states that “do not support law enforcement” to transfer to Virginia departments.

Individual agencies with lateral recruitment incentives include the Virginia State Police and the police or sheriff’s departments for Alexandria, Charlottesville, Lynchburg, Virginia Beach, Arlington County, and Fairfax County.

The nonprofit Police Executive Research Forum, an independent think tank, has warned against these practices. “Agencies … have only a limited ability to learn about any misconduct an officer may have committed at a prior agency,” researchers wrote in an August report on the police “staffing crisis.” It cautioned agencies to “be wary of lateral recruitment.”

“Every agency is screaming for more police officer applicants, and so that makes hiring and the acceptance of officers who may have questionable backgrounds a problem for us,” said Patrick Solar, a former police chief in Genoa, Illinois, and a criminal justice professor at the University of Wisconsin-Platteville. “To hire people to fill the ranks, we may intentionally or inadvertently lower our standards. It brings in the opportunity for officers who may run into trouble moving from one agency to the next.”

• 
•