At the end of the Civil War slave patrols morphed into Southern law enforcement. Systemic racism is literally baked into law enforcement in this country.
Inadequate Response to Affiliations with White Supremacist and Militant Groups
The FBI’s 2015 Counterterrorism Policy Directive and Policy Guide warns that “domestic terrorism investigations focused on militia extremists, white supremacist extremists, and sovereign citizen extremists often have identified active links to law enforcement officers.” footnote1_xiiatzb12 This alarming declaration followed a 2006 intelligence assessment, based on FBI investigations and open sources, that warned of “white supremacist infiltration of law enforcement . . . by organized groups and by self-initiated infiltration by law enforcement personnel sympathetic to white supremacist causes.” footnote2_flizdh413 Active links between law enforcement officials and the subjects of any terrorism investigation should raise alarms within our national security establishment, but the federal government has not responded accordingly.
The FBI and the Department of Homeland Security (DHS) have identified white supremacists as the most lethal domestic terrorist threat to the United States. footnote3_iiow97l14 In recent years, white supremacists have executed deadly rampages in Charleston, South Carolina, Pittsburgh, Pennsylvania, and El Paso, Texas. footnote4_s9ux6x215 Narrowly thwarted attempts by neo-Nazis to manufacture radiological “dirty” bombs in Maine in 2009 and Florida in 2017 show their dangerous capability and intent to unleash mass destruction. footnote5_7lnqji816 These groups also pose a lethal threat to law enforcement, as evidenced by recent attacks against Federal Protective Service officers and sheriff’s deputies in California by far-right militants intent on starting the “Boogaloo” — a euphemism for a new civil war — which killed two and injured several others. footnote6_6jp3ol217
Any law enforcement officers associating with these groups should be treated as a matter of urgent concern. Operating under color of law, such officers put the lives and liberty of people of color, religious minorities, LGBTQ+ people, and anti-racist activists at extreme risk, both through the violence they can mete out directly and by their failure to properly respond when these communities are victimized by other racist violent crime. Biased policing also tears at the fabric of American society by undermining public trust in equal justice and the rule of law.
The FBI’s 2006 assessment, however, takes a narrower view. It claims that “the primary threat” posed by the infiltration or recruitment of police officers into white supremacist or other far-right militant groups “arises from the areas of intelligence collection and exploitation, which can lead to investigative breaches and can jeopardize the safety of law enforcement sources or personnel.” footnote7_9g9twoe18 Though the FBI redacted significant passages of the assessment before releasing it to the public, the document does not appear to address any of the potential harms these bigoted officers pose to communities of color they police or to society at large. Rather, it identifies the main problem as a risk to the integrity of FBI investigations and the security of its agents and informants.
In a June 2019 hearing before the House Committee on Oversight and Reform, Rep. William Lacy Clay (D-MO) asked Michael McGarrity, the FBI’s assistant director for counterterrorism, whether the bureau remained concerned about white supremacist infiltration of law enforcement since the publication of the 2006 assessment. McGarrity indicated he had not read the 2006 assessment. footnote8_8xzk4ao19
When asked more generally about the issue, McGarrity said he would be “suspect” of white supremacist police officers, but that their ideology was a First Amendment–protected right. The 2006 assessment addresses this concern, however, correctly summarizing Supreme Court precedent on the issue: “Although the First Amendment’s freedom of association provision protects an individual’s right to join white supremacist groups for the purposes of lawful activity, the government can limit the employment opportunities of group members who hold sensitive public sector jobs, including jobs within law enforcement, when their memberships would interfere with their duties.” footnote9_nbsc46t20
More importantly, the FBI’s 2015 counterterrorism policy, which McGarrity was responsible for implementing, indicates not just that members of law enforcement might hold white supremacist views, but that FBI domestic terrorism investigations have often identified “active links” between the subjects of these investigations and law enforcement officials. Its proposed remedy is stunningly inadequate, however. The guide simply instructs agents to use the “silent hit” feature of the Terrorist Screening Center watchlist so that police officers searching for themselves or their white supremacist associates could not ascertain whether they were under FBI scrutiny.
While it is important to protect the integrity of FBI terrorism investigations and the safety of law enforcement personnel, Congress has also tasked the FBI with protecting the civil rights of American communities often targeted with discriminatory stops, searches, arrests, and brutality at the hands of police officers. The issue in these cases isn’t ideology but law enforcement connections to subjects of active terrorism investigations. It is unlikely that the FBI would be similarly hesitant to act if it received information that U.S. law enforcement officials were actively linked to terrorist groups like al-Qaeda or ISIS, or to criminal organizations like street gangs or the Mafia. Yet many of the white supremacist groups investigated by the FBI have longer and more violent histories than these other organizations. The federal response to known connections of law enforcement officers to white supremacist and far-right militant groups has been strikingly insufficient.
A Long History of Law Enforcement Involvement in White Supremacist Violence
White supremacy was central to the founding of the United States, sanctified in law and practice. It was the driving ideology behind the European colonization of North America, the subjugation of Native Americans, and the enslavement of kidnapped Africans and their descendants. Policing in the early American colonies was often less about crime control than maintaining the racial social order, ensuring a stable labor force, and protecting the property interests of the white privileged class. Slave patrols were among the first public policing organizations formed in the American colonies. footnote1_th2pzd321 Put simply, white supremacy was the law these earliest public officials were sworn to enforce. Even states such as New York, Pennsylvania, Ohio, Indiana, and Illinois that banned slavery enacted racist “Black laws,” which restricted travel and denied civil rights regarding voting, education, employment, and even residency for free Black people. footnote2_5g8almd22 The U.S. Congress passed the Fugitive Slave Act of 1850, which required law enforcement officials in free states to return escaped slaves to their enslavers in the South. footnote3_9r9479423
When slavery was finally abolished in the United States after the Civil War, de jure white supremacy lived on through Black codes and Jim Crow laws. In 1882, Congress passed the Chinese Exclusion Act, an openly racist law halting Chinese immigration and denying naturalization to Chinese nationals already living in the United States. footnote4_tjjiwrj24 The Immigration Act of 1924 was also explicitly racist, codifying strict national origin quotas to limit Italian, eastern European, and nonwhite immigration. The law barred all immigration from Japan and other Asian countries not already excluded by previous legislation. footnote5_jgwwuy925
As the United States expanded westward, government agents enforced policies of violent ethnic cleansing against Native Americans and Mexican Americans. In the early 20th century, Texas Rangers led lynching parties that targeted Mexican Americans residing in Texas border towns on specious allegations of banditry. footnote6_r81gf1k26 Where the laws were deemed insufficient to dissuade nonwhites and non-Protestants from exercising their civil rights, reactionary groups such as the Ku Klux Klan used terrorist violence to enforce white supremacy. Law enforcement officials often participated in this violence directly or supported it by refusing to fulfill their duty to protect the peace and hold lawbreakers to account. By the 1920s, the KKK alone claimed 1 million members nationwide from New England to California, and had fully infiltrated federal, state, and local governments to advance its exclusionist agenda. footnote7_df8c8g627
Many states outside the Deep South maintained “sundown towns” where police officers and vigilante mobs enforced official and quasi-official policies prohibiting Black (and often other nonwhite) people from remaining in town past sunset. footnote8_11uci0o28 Into the 1970s, there were an estimated 10,000 sundown towns across the United States. footnote9_mmf840o29 Police enforcement of white supremacy was never just a regional problem.
Hidden in Plain Sight
In 1964, civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner went missing in Mississippi during the Freedom Summer voter registration drive, shortly after being released from a Philadelphia, Mississippi, jail where they had been taken to pay a speeding fine. footnote1_hnxr75u30 President Lyndon Johnson ordered FBI Director J. Edgar Hoover to send FBI agents to find them. Searchers found the bodies of eight black men, including two college students who were working on the voter registration drive, before an informant’s tip finally led the agents to an earthen dam where Chaney, Goodman, and Schwerner were buried. After local law enforcement refused to investigate the murders, the Justice Department charged 19 Ku Klux Klansmen with conspiring to violate Chaney, Goodman, and Schwerner’s civil rights. Two current and two former law enforcement officials were among those charged. An all-white jury convicted seven of the Klansman but only one of the law enforcement officers. footnote2_dma0e1n31
While the Mississippi Burning case was the most notorious, it was far from the last time white supremacist law enforcement officers engaged in racist violence. There is an unbroken chain of law enforcement involvement in violent, organized racist activity right up to the present. In the 1980s, the investigation of a KKK firebombing of a Black family’s home in Kentucky exposed a Jefferson County police officer as a Klan leader. In a deposition, the officer admitted that he directed a 40-member Klan subgroup called the Confederate Officers Patriot Squad (COPS), half of whom were police officers. He added that his involvement in the KKK was known to his police department and tolerated so long as he didn’t publicize it. footnote3_n6bjatk32
In the 1990s, Lynwood, California, residents filed a class action civil rights lawsuit alleging that a gang of racist Los Angeles County sheriff’s deputies known as the Lynwood Vikings perpetrated “systematic acts of shooting, killing, brutality, terrorism, house-trashing and other acts of lawlessness and wanton abuse of power.” footnote4_jdsye7t33 A federal judge overseeing the case labeled the Vikings “a neo-Nazi, white supremacist gang” within the sheriff’s department that engaged in racially motivated violence and intimidation against the Black and Latino communities. In 1996, the county paid $9 million in settlements. footnote5_7q3xnie34
Recent reporting suggests this overtly racist gang activity within the sheriff’s department continues. footnote6_y0h8ebx35 In 2019, Los Angeles County paid $7 million to settle a wrongful death lawsuit against two sheriff’s deputies for shooting an unarmed Black man after testimony revealed that they were part of a group of deputies with matching tattoos in the tradition of earlier deputy gangs. A pending lawsuit accuses the same two officers of beating an unarmed Black man while yelling racial epithets. footnote7_k8semh636 A Los Angeles County Board of Supervisors investigation revealed that almost 60 lawsuits against alleged members of deputy gangs have cost the county about $55 million, which includes $21 million in cases over the last 10 years. These deputy gangs pose a threat to their fellow law enforcement officers as well, according to two recently filed lawsuits. In one, a deputy alleges he had been bullied by deputy gang members for five years, and finally viciously beaten by the gang’s enforcer. footnote8_i8b4kiy37 In another, a deputy who witnessed the attack alleged he suffered threats and retaliation from deputy gang members after reporting it to an internal affairs tip line. footnote9_yrrq39138 In 2019, the FBI reportedly initiated a civil rights investigation regarding gang activity at the sheriff’s department. footnote10_7s4jk6t39
Only rarely do these cases lead to criminal charges. In 2017, Florida state prosecutors convicted three prison guards of plotting with fellow KKK members to murder an inmate. footnote11_628nozq40 Federal prosecutions are even rarer. In 2019, the Justice Department charged a New Jersey police chief with a hate crime for assaulting a Black teenager during a trespassing arrest after several of his deputies recorded his numerous racist rants. This incident marked the first time in more than a decade that federal prosecutors charged a law enforcement official for an on-duty use of force as a hate crime. footnote12_b7lnk6841 A jury convicted the police chief of lying to FBI agents but was unable to reach a verdict on the hate crime charge, which prosecutors vowed to retry. footnote13_ltf8lyn42
More often, police officers with ties to white supremacist groups or overt racist behavior are subjected to internal disciplinary procedures rather than prosecution. In 2001, two Texas sheriff’s deputies were fired after they exposed their KKK affiliation in an attempt to recruit other officers. footnote14_95sluw343 In 2005, an internal investigation revealed a Nebraska state trooper was participating in a members-only KKK chat room. footnote15_km1r81144 He was fired in 2006 but won his job back in an arbitration mandated by the state’s collective bargaining agreement. On appeal, the Nebraska Supreme Court upheld his dismissal, determining that the arbitration decision violated “the explicit, well-defined, and dominant public policy that laws should be enforced without racial or religious discrimination, and the public should reasonably perceive this to be so.” footnote16_ujy18x145 Three police officers in Fruitland Park, Florida, were fired or chose to resign over a five-year period from 2009 to 2014 after their Klan membership was discovered. footnote17_4hfyo2946 In 2015, a Louisiana police officer was fired after a photograph surfaced showing him giving a Nazi salute at a Klan rally. footnote18_yapd5cu47
In 2019, a police officer in Muskegon, Michigan, was fired after prospective homebuyers reported prominently displayed Confederate flags and a framed KKK application in his home. The police department conducted an investigation into potential bias, examining the officer’s traffic citation rate and reviewing an earlier internal affairs investigation into an excessive force complaint and two previous on-duty shootings, each of which were found justified. (The investigation uncovered a third, previously unreported shooting in another jurisdiction that was not further described). footnote19_7e9zsz848 Although the internal investigation documented the officer citing Black drivers at a higher rate than the demographic population in the district he patrolled, it determined that the officer was not a member of the KKK and had shown no racial bias on the job. Still, the report concluded that the community had lost faith in the officer as a result of the incident, and the police department fired him. footnote20_p8tef7249 The officer settled a grievance he filed with the Police Officers Labor Council regarding his termination, agreeing to retire in exchange for his full pension and health insurance. footnote21_5ghgckr50
In June 2020, three Wilmington, North Carolina, police officers were fired when a routine audit of car camera recordings uncovered conversations in which the officers used racial epithets, criticized a magistrate and the police chief in frankly racist terms, and talked about shooting Black people, including a Black police officer. One officer said that he could not wait for a declaration of martial law so they could go out and “slaughter” Black people. He also announced his intent to buy an assault rifle in preparation for a civil war that would “wipe ’em off the [expletive] map.” The officers confirmed making the statements on the recording, but they claimed that they were not racist and were simply reacting to the stress of policing the protests following the killing of George Floyd. In addition to the officers’ dismissal, the police chief ordered his department to confer with the district attorney to review cases in which the officers appeared as witnesses for evidence of bias against offenders. footnote22_r08wsig51
In July 2020, four police officers in San Jose, California, were suspended pending investigation into their participation in a Facebook group that regularly posted racist and anti-Muslim content. In a post about the Black Lives Matter protests, one officer reportedly responded, “Black lives really don’t matter.” In a positive development, the San Jose Police Officers’ Association president vowed to withhold the union’s legal and financial support from any officer charged with wrongdoing in the matter, stating that “there is zero room in our department or our profession for racists, bigots or those that enable them.” footnote23_bnfgmlt52
In some cases, law enforcement officials who detect white supremacist activity in their ranks take no action unless the matter becomes a public scandal. For example, in Anniston, Alabama, city officials learned in 2009 of a police officer’s membership in the League of the South, a white supremacist secessionist group. The police chief, however, determined that the officer’s membership in the group did not affect his performance and allowed him to remain on the job. In the following years the officer was promoted to sergeant and eventually lieutenant. footnote24_rtjjzwk53 It wasn’t until 2015, after the Southern Poverty Law Center published an article about a speech he had given at a League of the South conference in which he discussed his recruiting efforts among other law enforcement officers, that the police department fired him. footnote25_o982sel54 A second Anniston police lieutenant found to have attended the same League of the South rally was permitted to retire. The fired officer appealed his dismissal. After a three-day hearing, a local civil service board upheld his removal. The officer then filed a lawsuit alleging that his firing violated his First Amendment free speech and association rights, but a federal court affirmed the termination.
The Anniston example demonstrates the need for transparency, public accountability, and compliance with due process to successfully resolve these cases. The Anniston Police Department and city officials knew about these officers’ problematic involvement in a racist organization for years, but it took public pressure to finally compel action. They then responded correctly, in awareness of the public scrutiny, by dismissing the officer in a manner that provided the due process necessary to withstand judicial review. The department then implemented a policy requiring police officers to sign a statement affirming that they are not members of “a group that will cause embarrassment to the City of Anniston or the Anniston police department.” footnote26_jn0t4ni55 It requested conflict resolution training from the DOJ Community Relations Service. These were positive steps to begin rebuilding public trust. But as in many of these cases, during the nine years when avowed white supremacist police officers served in the Anniston Police Department (including in leadership positions), there was not a full evaluation or public accounting of their activities. The Alabama NAACP requested that the DOJ and U.S. attorney examine the officers’ previous cases for potential civil rights violations, but there is no evidence that either ever initiated such an investigation. footnote27_zap9sl256 This decision forfeited another opportunity to restore public confidence in law enforcement.
Unfortunately, there is no central database that lists law enforcement officers fired for misconduct. As a result, some police officers dismissed for involvement in racist activity are able to secure other law enforcement jobs. footnote28_xd2b4xr57 In 2017, the police chief in Colbert, Oklahoma, resigned after local media reported his decades-long involvement with neo-Nazi skinhead groups and his ownership of neo-Nazi websites. footnote29_ziqk14p58 A neighboring Oklahoma police department hired him the following year, claiming he had renounced his previous racist activities and held a clean record as a police officer. footnote30_1c81fhu59
In 2018, the Greensboro, Maryland, police chief was charged with falsifying records to hire a police officer who had previously been forced to resign from the Dover, Delaware, police department after he kicked a Black man in the face and broke his jaw. The same officer was later involved in the death of an unarmed Black teenager, which sparked an investigation that revealed 29 use of force reports at his previous job, including some that found he used unnecessary force. The previous incidents were never reported to the Maryland police certification board. footnote31_rqmeb8l60
Prosecutors have an important role in protecting the integrity of the criminal justice system from the potential misconduct of explicitly racist officers. The landmark 1963 Supreme Court ruling in Brady v. Maryland requires prosecutors and the police to provide criminal defendants with all exculpatory evidence in their possession. footnote32_0u8qk9w61 A later decision in Giglio v. United States expanded this requirement to include the disclosure of evidence that may impeach a government witness. footnote33_iihwp4b62 Prosecutors keep a register of law enforcement officers whose previous misconduct could reasonably undermine the reliability of their testimony and therefore would need to be disclosed to defense attorneys. This register is often referred to as a “Brady list” or “no call list.”
Georgetown Law Professor Vida B. Johnson has argued that evidence of a law enforcement officer’s explicitly racist behavior could reasonably be expected to impeach his or her testimony. footnote34_lm5q9kp63 Prosecutors, therefore, should be required to include these officers on Brady lists to ensure defendants they testify against have access to the potentially exculpating evidence of their explicitly racist behavior. This reform would be an important measure in blunting the impact of racist police officers on the criminal justice system. In 2019, progressive St. Louis prosecutor Kimberly Gardner placed all 22 of the St. Louis police officers that the Plain View Project identified as posting racist content on Facebook on her office’s no call list. footnote35_nfqbyj3