Michael Burke was employed by the Josephine County Sheriff’s Office, in Oregon, from 1998 to 2007. His employment was terminated after an unreasonable use-of-force incident that occurred in May 2007. Burke placed a cooperative vehicle passenger under arrest using an armbar, which is a submission technique used in various martial arts. Burke then grabbed the passenger’s thumb, bent it, and threatened to break the passenger’s finger if he did not tell Burke the identity of the driver of the vehicle. Burke then disabled the in-car video and, during transport, abruptly stopped the vehicle twice, each time pulling the passenger’s shirt over his head and forcing the passenger’s head between his knees, causing an ear injury. During the second stop, Burke bounced up and down on the passenger while the passenger’s head was in between his legs. Consequently, the State of Oregon revoked Burke’s police officer certifications.
Prior to his termination, two additional incident reports were filed against Burke for excessive force. One incident stemmed from an arrest where Burke allegedly grabbed a 120-pound female suspect by the hair on the back of her head and violently slammed her face into the trunk of his patrol vehicle, with force sufficient to cause a facial laceration and bruised eyes. This complaint resulted in a criminal investigation that was ultimately closed without the filing of criminal charges. In another incident, Burke escalated a situation by shoving the suspect and arresting him in a scuffle.
In January 2022, Burke was hired as a deputy sheriff by the Nye County Sheriff’s Office (NCSO), in Nevada. Following a background investigation, NCSO concluded that Burke met the requirements to be appointed as a peace officer in Nevada. In the same month, Michael Sherlock, the Executive Director of the Nevada Commission on Peace Officers’ Standards and Training (POST), informed NCSO that Burke was ineligible for certification in Nevada because of the revocation of his certification in Oregon due to excessive force. NCSO argued that POST was required to certify Burke because, while he was ineligible for certification under the lateral transfer provision of POST’s regulations, he was eligible following the successful completion of a training academy.
In May 2022, NCSO petitioned POST to reconsider its position. The commissioners unanimously voted to deny certification based on the Oregon revocation. NCSO then requested to administer the certification exam to its academy students, including Burke. POST informed NCSO that Burke was not permitted to be on the roster and that it would not allow Burke to sit for the exam. NSCO defied this instruction and allowed Burke to sit for the exam, which he purportedly passed.
Burke petitioned the district court for a writ of mandamus compelling POST to issue a Category I basic peace officer certification to him. The district court denied the petition. Burke appealed. The Supreme Court of Nevada affirmed the district court’s decision.
The Court first addressed POST’s argument that Burke’s appeal should be denied because the district court based its denial in part on its finding that Burke did not validly take the certification exam and Burke failed to appeal this issue. The Court found this argument unpersuasive and focused on the merits of Burke’s appeal.
The Court was similarly unmoved by Burke’s assertion that he met the minimum standards for appointment under Nevada Administrative Code Chapter 289 and that his decertification in Oregon was not grounds for denial of a certificate in Nevada. “NAC 289.110(4)(c) states that ‘a person may not be appointed to perform the duties of a peace officer if he or she has a documented history of physical violence.’ Burke was terminated for cause and had his Oregon certification permanently revoked as a result of the incident where he was found to have used excessive force (i.e., physical violence). While POST indicated its decision was based on the revocation of Burke’s Oregon certification, the revocation itself occurred because of acts of physical violence committed by Burke, and the commission clearly found that the decertification met the physical violence disqualifying factor. Sherlock connected Burke’s conduct back to the minimum standards, asserting that a documented and sustained case of excessive force clearly violates the minimum standard of prohibiting the hiring of someone with a documented history of physical violence. That’s exactly what the Oregon revocation is.’ Another commissioner expressed that Burke ‘did not have a background worthy of even getting to the point of hiring’ and that he, ‘does not meet the minimum requirements.’
“POST’s decision was based on its finding that Burke’s documented history of physical violence disqualified him from appointment as a peace officer. Thus, the district court did not abuse its discretion in determining that extraordinary relief was not warranted.”
Burke v. Nev. Commission on Peace Officers’ Standards and Training, 557 P.3d 1281 (Nev. 2024).