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Non-citizens with legal status can enlist in the U.S. military and risk their lives in combat. But in most states they cannot be employed as police officers. Now dozens of police chiefs and sheriffs, alarmed at the shrinking numbers of qualified recruits, want to see the long-standing prohibition lifted.

“I don’t think someone’s citizenship is indicative in any way of someone’s suitability to be a police officer,” said Tom Manger, police chief in Montgomery County, Maryland, a suburb of Washington D.C. He co-chairs a national task force of policing executives lobbying legislatures to change the law in Maryland and elsewhere.

The movement is part of a broader recognition that the difficulty in recruiting police is not just a result of low pay and battered morale—the so-called Ferguson Effect—but of numerous obstacles thrown up by politicians or police themselves.

Jurisdiction by jurisdiction, those barriers are being challenged, often successfully.

A growing number of law enforcement agencies will now accept applicants who admit past drug use or have arrest records for low-level offenses, who lack college degrees and who sport tattoos or facial hair.

But frustrated cops say they are still being handcuffed by arcane state laws and slow-to-respond state oversight commissions.

In Massachusetts, officers and police applicants are disqualified if they smoke cigarettes, even off-duty.

Matthew Starr, an army veteran who had been deployed to Iraq and Afghanistan, was rejected by the police department in Medfield, Massachusetts, near Boston, after a police officer secretly photographed Starr getting out of his pickup to smoke. Starr appealed to the state’s Civil Service Commission and lost.

“It doesn’t make sense to claim there is a shortage when you aren’t going to hire someone who smokes,” said Starr, who is now a 7th grade public school teacher. Being a cop “is a tough job, there’s no money, there is no respect in it, and these asinine laws don’t help either.”

Massachusetts is also one of several states where women are challenging physical requirements that impede the hiring and retention of female officers. Critics argue the rules have little to do with the demands of policing.

The state requires women to traverse the same arduous obstacle course as men. The fail rate for women was 20 percent compared to a rate of 2 percent for men, according to a data analysis by news station WCVB. The Massachusetts Human Resources Division settled a lawsuit in 2015 with a promise to revise the test, but the reforms have yet to be announced. All five branches of the U.S. military, meanwhile, offer varied fitness standards for basic training based on gender. Beginning in late 2020, the Army will switch to a physical testing system for already enlisted soldiers based on the strain of their assignments rather than gender and age.

Matthew Starr, a veteran of the U.S. Army, was rejected by the police department in Medfield, Massachusetts after he was photographed smoking.

(Photo: Tony Luong for The Marshall Project)

Policing experts point out that law enforcement is historically slow to adapt to shifts in the cultural norms. Long after contact lenses were commonplace, police forces demanded 20/20 vision. Until the 1980s it was common for law enforcement agencies to shun gay cops on grounds that there would be “morale problems.”

Many police departments still ask applicants intrusive questions about their personal lives. A Marshall Project review of background check questionnaires found queries about “unusual” sexual acts (Cincinnati Police Department), attendance at cock or dog fights (Albuquerque Police Department) and whether an applicant has “given anything to anyone that was not yours to give away”. (Richmond Police Department in Virginia).

No issue is as fraught as the ban on applicants lacking full citizenship, at a time when President Trump has framed immigration as one of the country’s most polarizing debates.

According to a 2016 report by the U.S. Justice Department, more than 40 states have statutes, regulations, or administrative rules in place that restrict the ability of law enforcement agencies to employ non-citizens. The report, a survey of diversity in policing, notes that “this requirement may prevent a considerable number of racial and ethnic minorities—many of whom have valuable foreign language skills—from being hired by law enforcement agencies.”

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Justin Levitt, a Justice Department official in the Obama administration, supervised discrimination cases against police departments that banned legal immigrants in the few states that allowed them to be hired as cops. Levitt questioned why legislatures continue to prevent police chiefs from employing who they want. “These laws tell local law enforcement that you have to hire someone less qualified based on the fact that they were born here,” Levitt said.

Manger’s group, called the Law Enforcement Immigration Task force, issued a white paper in 2017 urging that the citizenship requirement be lifted. Manger said the change might begin with legal immigrants who have been honorably discharged from the military.

“If you criticize these individuals, then you are criticizing someone who has military service,” Manger said. A bill to make green-card holders with military service eligible for policing died in the Maryland Senate last year, but its sponsor plans to reintroduce it.

Tennessee in 2015 amended its laws to open police recruitment to non-citizens with military service, after the police chief in Nashville rallied legislators. "Having a cross-section of Nashville serving on the police department enhances our knowledge and appreciation of cultures so we can better serve our population,” said then Nashville Police Chief Steve Anderson after the law was changed.

Not all jurisdictions in the state are following the reform. The Memphis Police Department still requires its applicants to be citizens. When the failure to comply with state law was brought to the city’s attention, spokeswoman Ursula Madden said Memphis officials were “in the process of updating the language.”

Montgomery County, Maryland, Police Chief Tom Manger has lobbied for the state to allow military veterans who are not citizens to be hired as police officers.

(Photo: Gabriella Demczuk for The Marshall Project)

Houston Police Chief Art Acevedo wants a broader change, and says he is talking with a bipartisan group of state legislators to craft a bill that would allow law enforcement agencies to hire legal non-citizens who qualify, with or without a military background. “They came here legally like we asked them to do, and they have the heart, let’s remove that artificial wall, and let’s build a bridge to service. That’s what we should be doing,” said Acevedo who co-chairs the immigration task force along with Manger.

Opponents of allowing permanent residents to join police ranks say they don’t want to empower green-card holders to detain U.S. citizens. They also question whether an immigrant, who didn’t go through the naturalization process, could fairly practice constitutional policing. “If you want to become a cop, become a citizen,” said former Illinois U.S. Rep. Joe Walsh who is now a nationally syndicated conservative radio host.

In 2015, Walsh’s listeners flooded a village council meeting in suburban Chicago and loudly protested a proposal for the Mount Prospect Police Department to hire non-citizens. Due to the backlash, Mount Prospect officials dropped the idea. The police chief described the critics as a “lynch mob.”

The right of states to restrict police recruiting based on citizenship rests on a 1978 U.S. Supreme Court ruling that upheld the New York State Police’s refusal to accept the application of a legal permanent resident named Edmund Foley. “Police officials are clothed with authority to exercise an almost infinite variety of discretionary powers,” the court ruled. “A state may therefore confine the performance of this important public responsibility to those who are citizens.”

In 2016, the Obama administration fined the Denver sheriff's department $10,000 for incorrectly advertising that citizenship was a requirement for a deputy position. Colorado is one of a handful of states that allow non-citizens to apply for local law enforcement jobs. As part of the settlement, Denver agreed to track down green card holders who had been passed over for a job and reconsider them for employment.

One beneficiary of the new policy was Omar Barrios, a legal immigrant from Mexico but not yet a citizen. Now a deputy, he works at Denver’s downtown detention center. “Nobody ever asks me if I am a resident or a citizen,” he says. “I do my job like anyone else.”