White Supremacists in Law Enforcement & the need to eliminate it

Vol. 6, 2013 30 LSD Journal

LAW AND ORDER AND WHITE POWER: WHITE SUPREMACIST

INFILTRATION OF LAW ENFORCEMENT AND THE NEED TO ELIMINATE RACISM IN THE RANKS

William Y. Chin*

I. INTRODUCTION

White supremacy ideology endures in the

United States. White supremacy adherents

strategize on how to implement their vision of a

white America. Members pledge on their

membership card of the Knights Party, a Klan-

affiliated white supremacist group, to work for the

protection of the White race and to advance their

cause in all areas of society, whether economic,

judicial, social, educational, scientific, or

political.1 To reach all areas of society, white

* Professor Chin teaches Race and the Law and Legal Analysis and Writing at Lewis and Clark Law School. The author thanks Qing Wang for her thorough research assistance and Paul L. Boley Law Library staff members for their assistance. 1 Nebraska v. Henderson, 762 N.W.2d 1, 10 (Neb. 2009) (emphasis added).

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supremacists seek to infiltrate the political

establishment,2 the military, and law enforcement.3

This article focuses on white supremacists

infiltrating law enforcement, the dangers posed by

such infiltration, and the need for law enforcement

employers to discharge racist officers.

Attaining law enforcement positions

empower white supremacists with training,

weapons, and authority.4 Such empowerment poses

a danger to civil society because white supremacy

affirms racial inequality and the subordination of

nonwhites.5 White supremacy is an individual,

group or action embodying the ideological notion of

biological, genetic, intellectual or other inherent

2 Betty A. Dobratz & Stephanie L. Shanks-Meile, White Power, White Pride! The White Separatist Movement Inside the United States 212 (1997). 3 Fed. Bur. Of Investigation, Counterterrorism Division, Intelligence Bulletin, Ghost Skins: The Fascist Path of Stealth, 2 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402522-doc-27-ghost-skins.html. 4 Natl Gang Intelligence Center, 2011 National Gang Threat Assessment 33 (2011), available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends. 5 Jerome P. Bjelopera, Congressional Research Service, The Domestic Terrorist Threat: Background and Issues for Congress, 16 (2013), available at http://www.fas.org/sgp/crs/terror/R42536.pdf.

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superiority of whites over other population

groups.6 White supremacists also include those

who believe in white superiority, even if they are

not official members of a white supremacist group.7

Law enforcement employers need to

understand the danger of white supremacist

infiltration and take robust action to expel racist

police officers8 whose beliefs mandate

discriminatory behavior against non-whites.9 Law

enforcement employers have the authority to

terminate racist police officers because courts look

favorably on the ability of police departments to

effectively carry out their law enforcement

functions.10 Furthermore, racist officers are simply

6 Robert Crawford et al., The Northwest Imperative: Documenting a Decade of Hate, A-8 (1994). 7 See id. 8 See Joseph D. McNamara, Americas Plague of Bad Cops, L.A. TIMES, Sept. 17, 1995, available in http://articles.latimes.com/1995-09-17/opinion/op-47081_1_bad-cops/2. 9 See Carla D. Pratt, Should Klansment be Lawyers? Racism as an Ethical Barrier to the Legal Profession, 30 FLA. ST. U. L. REV. 857, 887 (2003). 10 See Andr G. Travieso, Employee Free Speech Rights in the Workplace: Balancing the First Amendment Against Racists Speech by Police Officers, 51 RUTGERS L. REV. 1377, 1383 (1999).

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not qualified to be law enforcement officials.11

Discharging racist police officers is not a restriction

of their First Amendment rights, but a necessary

effort to eliminate unqualified law enforcement

employees.12 Accomplishing this ensures the police,

like courts and schools, is a beneficent social

institution operating as a positive force that controls

rather than propagates violence.13

Part II identifies the enduring problem of

white supremacy ideology residing within law

enforcement. Part III reveals a legacy of white

supremacy in law enforcement. Parts IV and V

examine how white supremacy adherents continue

to seek positions in law enforcement and strategize

their infiltration. Part VI discusses the harms caused

by white supremacist infiltration of law

enforcement. Part VII offers a zero-tolerance

11 David E. Bernstein, Firing Racist Police Officers is Justified, Cato Institute (July 20, 2003), available at http://www.cato.org/publications/commentary/firing-racist-police-officers-is-justified. 12 See id. 13 See Jody Glittenberg, VIOLENCE AND HOPE IN A U.S.-MEXICO BOARD TOWN, 39 (2008).

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approach that discharges racist police officers to

ensure those who enforce laws do so equally.

II. A LEGACY OF WHITE SUPREMACY IN LAW ENFORCEMENT

White supremacy ideology suffused law

enforcement from the colonial period onward.

White supremacists have been and continue to be

embedded in law enforcement.

A. Colonial to Post-Civil War Periods

White supremacy and law enforcement have

a long, intertwined history. As early as 1671, South

Carolina established a watch consisting of regular

constables and rotating citizens to guard Charles

Town against potential problems including slave

gatherings.14 In the 1700s, South Carolina

established slave patrols, i.e., slave police, to

control and police slaves.15 By 1785, South

Carolina incorporated the slave patrols into the

14 Kristan Williams, OUR ENEMIES IN BLUE: POLICE AND POWER IN AMERICA, 45 (2007). 15 Id.

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Charleston Guard and Watch, the first modern

police department because this force was authorized

by Charleston to use force, had enforcement

responsibilities, was the primary law enforcement

agency for Charleston, and had a chain of command

consisting of a captain and subordinates.16

Throughout the pre-Civil War period, the slave

patrols and polices primary task was to control

slaves.17 States passed laws allowing local officials

to create slave patrols to control the slave

population and suppress slave insurrections.18 As

one slave patroller recounted, they were directed to

search the negro cabins, & take every thing which

we found in them, which bore a hostile aspect,

especially firearm material.19 They were also

instructed to apprehend every negro who we found

from his home and capture or shoot any who

resisted.20 Slaveholders justified white supremacy

16 Id. at 46. 17 Sally E. Hadden, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE CAROLINAS, 84 (2001). 18 John Hope Franklin & Loren Schweninger, RUNAWAY SLAVES: REBELS ON THE PLANTATION, 152 (1999). 19 Id. at 152-53. 20 Id. (emphasis added).

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over blacks based on racial ideologies derived

from laws of nature or laws of God.21 Racism was

literally postulated as a belief system to justify

slavery, explains Randall Robinson, founder of the

advocacy group TransAfrica.22

The Civil War ended de jure slavery, but

white anxieties about losing racial control

remained.23 Southern city and county police forces

continued to harass and threaten blacks.24 In the

post-slavery South, the Ku Klux Klans strategy of

white dominance included Klan members serving

on police forces.25 Southern white police officers

helped reassert white control by enforcing the pass

system requiring blacks to carry a pass and present

it on demand.26 As explained by one white officer

who arrested a black stablekeeper, [A]ll ni[ ][ ]ers

21 Ira Berlin, GENERATION OF CAPTIVITY: A HISTORY OF AFRICAN-AMERICAN SLAVES, 10-11 (2003) (emphasis added). 22 Randall Robinson, THE DEBT: WHAT AMERICA OWES TO BLACKS, 74 (2000). 23 Sally E. Hadden, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE CAROLINAS, 168 (2001). 24 Id. at 203. 25 Nancy Maclean, BEHIND THE MASK OF CHIVALRY: THE MAKING OF THE SECOND KU KLUX KLAN, 169-70 (1994). 26 Sally E. Hadden, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE CAROLINAS, 192-93 (2001).

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that did not have a paper from their master, showing

that they were employees, must be taken to jail and

hired out for 5 dollars per month.27

The police often participated in or led white

mobs to attack black individuals or assemblies.28

For example, in 1866 in New Orleans, the police led

an attack against a convention of black Union

loyalists.29 White police officers fired into the group

of black delegates.30 When blacks fired back, a

massacre ensued.31 White attackers clubbed and

shot the black delegates.32 The police led white

vigilantes around the city beating blacks and

shooting blacks who fled.33 A Congressional

committee later concluded the massacre had been

planned by white police members and assisted by

police Sergeant Lucien Adams and Sheriff Harry T.

Hays.34

27 Id. 28 Kristan Williams, OUR ENEMIES IN BLUE: POLICE AND POWER IN AMERICA, 78 (2007). 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. at 79. 34 Id.

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B. Twentieth-Century Period

White supremacy and law enforcement

remained intertwined in the twentieth century. In

the period between World War I and World War II,

right-wing groups, like the Ku Klux Klan, formed

the primary domestic threat because they adhered to

principles of racial supremacy, or embraced

antigovernment and antiregulatory beliefs in favor

of individual freedoms.35 William J. Simmons, an

Imperial Wizard of the Klan, stated that there is

never a stand taken unless an officer of the law

supervise[s] Klan violence.36 Rooting-out Klan

influence by prosecuting those who engaged in

Klan violence was difficult for officials because

Klan members penetrated all levels of local

governments including police departments.37 For

example, in one North Carolina town in the 1960s,

it was widely known in the community that

35 Fed Bur. of Investigation, Counterterrorism Division, Terrorism 2002-2005, 34, available at http://www.fbi.gov/stats-services/publications/terrorism-2002-2005/terror02_05.pdf (last visited June 3, 2013). 36 Nancy Maclean, BEHIND THE MASK OF CHIVALRY: THE MAKING OF THE SECOND KU KLUX KLAN, 170 (1994). 37 Id. at 18.

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Pittsboro police officials were Klan members.38 In

1965, one North Carolina State Highway Patrol

officer admitted, while chuckling and motioning

toward a Klan rally, Hell, Im on their side.39 In

1979, police officer William Rayfield, a Klan

member, was indicted by a federal grand jury for

firing shots into black leaders homes.40

Additional instances of racism in law

enforcement included the Birmingham police chief,

Theophilus Eugene Bull Connor, turning fire

hoses and police dogs on black schoolchildren and

other peaceful protesters during a Civil Rights

march in 1963.41 In the 1970s, a San Diego police

chief provided the following answer when queried

about running for mayor: Cant do it. I dont like

the ni[ ][ ]ers and the Mexicans dont like me.42

Additionally, the Southeast Investigation of the

San Diego Police Department in 1976 by then-

38 David Cunningham, KLANSVILLE, U.S.A.: THE RISE AND FALL OF THE CIVIL RIGHTS-ERA KU KLUX KLAN, 189 (2013). 39 Id. at 190. 40 Michael Novick, WHITE LIES, WHITE POWER, 70 (1995). 41 Andrew B. Lewis, THE SHADOWS OF YOUTH: THE REMARKABLE JOURNEY OF THE CIVIL RIGHTS GENERATION, 133 (2009). 42 Norm Stamper, BREAKING RANK: A TOP COPS EXPOS OF THE DARK SIDE OF AMERICAN POLICING, 100 (2005).

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Police Captain Norm Stamper revealed rampant

racism.43 Thirty of the thirty-one San Diego police

officers interviewed, including a lieutenant and two

sergeants, admitted using racial slurs.44 African

Americans were called ni_ _ers, boys, splibs toads,

coons garboons, groids (derived from negroid),

Sambos, Buckwheats, Rastuses, Remuses, jigaboos,

jungle bunnies, and spooks. Latinos were called

greasers, wets, wetbacks, beans, beaners, bean

bandits, chickenos, and spics.45 Most officers said

they used racial slurs among themselves and less

often with the public.46 In public, however, the

officers explained they used racial slurs only

jokingly, to defuse a tense situation, or because

they were really pissed at someone.47 The police

officers dehumanized citizens of color in other

ways. For example, white officers who encountered

blacks would say, during radio calls, No humans

involved and just an 11-13ni[ ][ ]er (11-13

43 Id. at 103. 44 Id. 45 Id. at 100. 46 Id. 47 Id.

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being code for an animal followed by an

identification of the animal).48 Before police

officers improperly stopped black suspects for

DWB (driving while black), officers improperly

stopped blacks for BBN (busy being a ni[ ][ ]er).

A San Diego police officer interviewed in the 1976

Southeast Investigation admitted that he witnessed

and made busts based on the racist BBN profile.49

Also, during the Southeast Investigations

examination of racial discrimination in the San

Diego police force, seventy-one percent of the San

Diego police officers admitted using or witnessing

excessive force.50

In the 1980s in Richmond, California, some

white police officers who called themselves the

Cowboys were convicted by a federal court jury

of civil rights violations including beating African

Americans.51 Also in the 1980s, a Klan police

48 Id. at 102. 49 Id. at 101. 50 Id. 51 Bobby White, Bias Lawsuits Rattle Richmond Police Force, WALL STREET J., Nov. 14, 2012, available at http://online.wsj.com/article/SB10001424127887324439804578115022118616866.html.

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officer in Jefferson County, Kentucky, had a post

office box in the name of the Confederate Officers

Patriotic Squad (COPS) to receive Klan material.

52 He admitted having a list of approximately forty

Klan members with probably more than half being

law enforcement officers.53 In 1989, a part-time

police officer in Newfields, New Hampshire, was

terminated for being a recruiter for the Klan.54 In

1990, the Tarrant County Sheriffs Department

discharged a reserve deputy because of his Klan

connections.55 He was the chief recruiter (Kleagle)

for the Klan in Texas.56 Shortly thereafter, he began

working as a police officer in Century, Florida. 57

The Century Police Department also discharged the

52 Courier-Journal v. Marshall, 828 F.2d 361, 362 (6th Cir. 1987). 53 Id. 54 Officer Fired for Involvement with Ku Klux Klan, L.A. TIMES, Dec. 13, 1989, available at http://articles.latimes.com/1989-12-13/news/mn-164_1_ku-klux-klan. 55 Klansman Fired in Dallas Discovered in Florida, OCALA STAR-BANNER, Apr. 1, 1990, at 6B, available at http://news.google.com/newspapers?nid=1356&dat=19900401&id=5W8xAAAAIBAJ&sjid=GwcEAAAAIBAJ&pg=4812,76168. 56 Id. 57 Id.

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officer after learning of his previous membership in

the Klan.58

In a 1991 case, a federal district court judge

found a group of deputies known as the Vikings

in the Los Angeles County Sheriffs Department to

be a neo-Nazi, white supremacist gang.59 Decades

later in 2013, two deputies filed suit against the

L.A. County Sheriffs Department alleging the

Vikings group still exists and that an inappropriate

relationship exists between certain LASD [Los

Angeles Sheriffs Department] personnel and

various inmate jail gangs, especially white

supremacists.60

58 Klan Rallies for Policeman, TIMES DAILY, May 28, 1990, at 8A, available at http://news.google.com/newspapers?nid=1842&dat=19900528&id=llkeAAAAIBAJ&sjid=Z8gEAAAAIBAJ&pg=4373,5201774. 59 Hector Tobar, Deputies in Neo-Nazi Gang, Judge Found, L.A. TIMES, Oct. 12, 1991, available at http://articles.latimes.com/1991-10-12/local/me-107_1_deputy-county. See also Thomas v. County of Los Angeles, 978 F.2d 504, 511 (9th Cir. 1992). 60 Matt Reynolds, Deputies Say Racist Gang Wields Power at Top of L.A. Sheriffs Dept., COURTHOUSE NEWS SERVICE, Apr. 16, 2013, available at http://www.courthousenews.com/2013/04/26/57064.htm.

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III. CONTINUING WHITE SUPREMACY IN LAW ENFORCEMENT

White supremacy and law enforcement

remain intertwined at the advent of the twenty-first

century. White supremacists admit they seek

employment in law enforcement.61 One white

supremacist website explained that although

government police forces are evil institutions,

instead, individual police officers who are

sympathetic to the pro-White cause and are the

best of our Race are good.62 Former California

grand dragon of the Knights of the Klu Klux Klan

and founder of White Aryan Resistance (WAR),

Tom Metzger, gave a 2004 speech to skinheads

exhorting them to advance the white cause through

infiltration: We have to infiltrate! Infiltrate the

military! Infiltrate your local governments!

61 Robin D. Barnes, Blue by Day and White by (K)Night: Regulating the Political Affiliation of Law Enforcement and Military Personnel, 81 IOWA L. REV. 1079, 1091 (1996). 62 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Assessment, White Supremacist Infiltration of Law Enforcement, 6 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402521-doc-26-white-supremacist-infiltration.html.

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Infiltrate your school board! Infiltrate law

enforcement!63 Also in 2004, the Deputy Chief of

Police for the Los Angeles Police Department,

Michael Berkow, warned of internal threats stating:

Right-wing extremists and members of militia

movements and supremacist groups and their

sympathizers have infiltrated some local police

departments.64 In 2006, The FBI issued an

intelligence assessment, titled White Supremacist

Infiltration of Law Enforcement, that explained

how white supremacist groups have historically

engaged in strategic efforts to infiltrate and recruit

from law enforcement communities.65

The election of Barack Obama as President

in 2008 did not signify the end of white supremacist

threats. Rather, the election of the first African

63 Southern Poverty Law Center, Tom Metzger, http://www.splcenter.org/get-informed/intelligence-files/profiles/tom-metzger (last visited Aug. 6, 2013) (emphasis added). 64 Michael Berkow, Homeland Security: The Internal Terrorists, 7 POLICE CHIEF, June 2004, available at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=319&issue_id=62004. 65 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Assessment, White Supremacist Infiltration of Law Enforcement, 3 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402521-doc-26-white-supremacist-infiltration.html.

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American president created opportunities for white

supremacists to recruit disaffected whites and

reinvigorate white supremacists cause.66 In 2009, a

police officer in Fruitland Park, Florida, James

Elkins, resigned while under investigation by the

Fruitland Park Police Department for being a Klan

official who had distributed fliers promoting the

Klan.67 Photos showed the officer dressed in Klan

gowns and hoods.68 A letter also named the officer

as a recruiter for the National Aryan Knights of the

Ku Klux Klan.69

According to a 2010 report by the National

Gang Intelligence Center, White supremacist

groups . . . have successfully infiltrated and have

made numerous attempts to infiltrate law

enforcement . . . agencies and recruit law

66 U.S. Dept of Homeland Security, Office of Intelligence and Analysis, Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, 2 (April 2009), available at http://www.fas.org/irp/eprint/rightwing.pdf. 67 Helen Eckinger, Fruitland Cop quits after hes linked to Ku Klux Klan, ORLANDO SENTINEL, Feb. 7, 2009, available at http://articles.orlandosentinel.com/2009-02-07/news/kkkcop07_1_klan-kkk-fruitland-park. 68 Id. 69 Id.

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enforcement personnel . . . .70 The report

mentioned a former police officer with suspected

Klan ties being charged with civil rights violations

involving death threats against blacks.71 The report

also noted that the National Alliance, a white

supremacist organization, engaged in recruiting

efforts, including recruiting law enforcement

officers.72 A later 2011 National Gang Intelligence

Center report on various gangs, including white

supremacist gangs, states: Gangs encourage

members, associates, and relatives to obtain law

enforcement . . . employment in order to gather

information on rival gangs and law enforcement

operations.73 According to the 2011 report, gang

members in at least 57 jurisdictions, including

California, Florida, Tennessee, and Virginia, have

70 Fed. Bur. of Investigation, National Gang Intelligence Center, Gangs Infiltrating Law Enforcement and Correctional Agencies, 3 (Jan. 2010), available at http://info.publicintelligence.net/NGIC-GangInfiltration.pdf. 71 Id. at 4. 72 Id. 73 Natl Gang Intelligence Center, 2011 National Gang Threat Assessment, 10 (2011), available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends.

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applied for or gained employment within judicial,

police, or correctional agencies.74

In a 2013 civil rights case involving an

African American tow company owner filing suit

against the town after being denied a place on the

towns tow list, witnesses recounted the towns

Chief of Polices racist statements, including: Im

not letting that goddam ni[ ][ ]ger tow for us and

Im not going to put that fucking ni[ ][ ]er on the

tow list.75 The Chief of Police conceded making

some of these statements and using the term ni[ ][

]er.76 Another witness testified that the Chief used

other racial slurs to describe Black, Latino, and

Arab residents.77 Although the Seventh Circuit

ruled against the Black tow company owner, the

court noted that the Chiefs racist language showed

enduring racial bias.78 According to the court,

We would have liked to believe that this

kind of behavior faded into the darker recesses of

74 Id. at 33. 75 Smith v. Wilson, 705 F.3d 674, 677 (7th Cir. 2013). 76 Id. 77 Id. 78 Id. at 682.

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our countrys history many years ago. When the

chief law-enforcement officer of a Wisconsin town

regularly uses language like fucking ni[ ][ ]er in

casual conversation, however, it is obvious that

there is still work to be done.79

The one part of the work that still needs to

be done includes understanding the threat of white

supremacist infiltration of the police force, so that

racism in this social institution can be effectively

addressed by law enforcement employers.

IV. WHITE SUPREMACIST STRATEGIES IN INFILTRATING LAW ENFORCEMENT

White supremacists penetrate law

enforcement through white supremacists groups

strategic infiltration or by self-initiated infiltration

by individuals sympathetic to white supremacist

causes.80 In both situations, white supremacists use

79 Id. 80 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Assessment, White Supremacist Infiltration of Law Enforcement 4 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402521-doc-26-white-supremacist-infiltration.html.

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artifice to accomplish their infiltration objective.81

Such subterfuge accords with the concept of ghost

skins, a term used by white supremacists to

describe avoiding overt expressions of racial animus

to blend into society to covertly promote white

supremacist causes.82 According to a 2006 FBI

intelligence assessment, Prospective Ghost Skins

will reportedly be encouraged to seek positions in

law enforcement in order to alert white

supremacists of pending investigative action against

them.83 One Klan patrol officer in 2005 wrote the

following in a members-only white supremacist

online discussion forum: I know evryone [sic]

81 At times, though, the effort to penetrate law enforcement is overt, such as Klansman Shaun Winkler openly discussing his Klan membership when he ran for sheriff in northern Idaho in 2012. George Prentice, Idaho Klansman Loses Sheriffs Race, BOISE WEEKLY, May 17, 2012, available at http://www.boiseweekly.com/CityDesk/archives/2012/05/17/idaho-klansman-loses-sheriffs-race (candidate Winkler lost and came in third in a three-candidate race). 82 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Assessment, White Supremacist Infiltration of Law Enforcement, 5 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402521-doc-26-white-supremacist-infiltration.html. 83 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Bulletin, Ghost Skins: The Fascist Path of Stealth, 2 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402522-doc-27-ghost-skins.html.

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must be discreet. I especially need to be discreet

because of my job ie: law enforcement.84

White supremacists covert infiltration of

law enforcement is consistent with their effort to

blend into society. Their strategy is to assimilate.85

A 1996 FBI terrorism report stated, Efforts have

been made by these [white supremacist] groups to

reduce openly racist views in order to appeal to a

broader segment of the population.86 Thom Robb,

the Grand Wizard of the Knights of the Klu Klux

Klan, told his members to avoid overt use of racial

slurs so as to craft a new Klan image allowing the

Klan to integrate into society.87 A membership

coordinator for the National Alliance, a white

supremacist group, instructed that, during

demonstrations, Sieg-Heiling and waving

swastika flags make[s] my job more difficult and

84 State of Nebraska v. Henderson, 762 N.W.2d 1, 11 (Neb. 2009). 85 Jon Ronson, THEM: ADVENTURES WITH EXTREMISTS 179 (2002). 86 Fed. Bureau of Investigation, U.S. Dept of Justice, Terrorism in the United States 1996, 17, available at http://www.fbi.gov/stats-services/publications/terror_96.pdf (last visited June 3, 2013). 87 Jon Ronson, THEM: ADVENTURES WITH EXTREMISTS 179 (2002).

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eventual White victory less likely.88 White

supremacists embrace Nazi symbols because a

prominent aspect of white supremacy is neo-Nazism

and its obsession with Adolph Hitler and Nazi

Germany.89 White supremacists draw inspiration

from Hitler and Nazi Germany to sustain their white

power ideology.90

White supremacists realize that their white

power views are anathema to others and open

expression of their views could lead to ostracism,

surveillance, or loss of employment.91 Thus, white

supremacists camouflage their identities to stay

concealed.92 Most white supremacists live dual

lives by privately devoting themselves to the white

power weltanschauung even as they publicly live

quiet lives in the workplace and elsewhere.93

88 Leonard Zeskind, BLOOD AND POLITICS: THE HISTORY OF THE WHITE NATIONALIST MOVEMENT FROM THE MARGINS TO THE MAINSTREAM, 534 (2009). 89 Jerome P. Bjelopera, Congressional Research Service, The Domestic Terrorist Threat: Background and Issues for Congress, 16 (2013), available at http://www.fas.org/sgp/crs/terror/R42536.pdf. 90 Pete Simi & Robert Futrell, AMERICAN SWASTIKA: INSIDE THE WHITE POWER MOVEMENTS HIDDEN SPACES OF HATE, 2 (2010). 91 Id. at 4. 92 Id. 93 Id. at 121.

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V. THE DANGERS OF WHITE SUPREMACISTS IN LAW ENFORCEMENT

White supremacist infiltration of law

enforcement harms police departments, the local

communities, and society at large.

A. Harms Police Departments

The white supremacists presence in law

enforcement harms police departments and police

operations. First, white supremacist officers impair

the internal harmony of a police department.94 The

words and deeds of racist officers in police

departments can promote resentment, distrust, and

racial strife among fellow officers.95 Second, white

supremacy harms police investigations.96 Their

access to sensitive information can compromise

ongoing investigations.97 Third, people are harmed

when the police fail to protect them during police

94 See Pappas v. Giuliani, 290 F.3d 143, 147 (2d Cir. 2002). 95 See Id. 96 Natl Gang Intelligence Center, 2011 National Gang Threat Assessment, 33 (2011), available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends. 97 Id.

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investigations.98 For example, a protected witness

testifying against a white supremacist gang could be

endangered by white supremacist gang members.99

Fourth, successful prosecution is hindered 100 As

one court explained, with Klan officers ensconced

in law enforcement, the Klan can foil indictments

brought forth by victims of Klan violence.101 Police

departments will be unable to carry out their law

enforcement duties.102

B. Harms the Communities They Serve

The presence of white supremacists in law

enforcement also harms the communities served by

the police. First, white supremacist officers fail to

serve people of color equally in the community.

Racist police officers are uniquely positioned to

abridge the rights of people of color.103 As one

federal court stated, regarding a federal border

98 See Id. 99 Id. 100 See State of Nebraska v. Henderson, 762 N.W.2d 1, 17 (Neb. 2009). 101 Id. 102 Pappas v. Giuliani, 290 F.3d 143, 147 (2d Cir. 2002). 103 See Mings v. Dept of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987).

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patrol agent who wrote a letter that exhibited racial

bias towards Hispanics: A law enforcement officer

who has this attitude towards the persons he is

charged with apprehending is likely to show little

respect for their rights.104 Ethnic minorities may

not rely on the police for protection.105 Second,

white supremacists employed as police officers hurt

the communitys relationship with the police.106

Efforts to build and promote partnerships between

the police and the community will undoubtedly

fail.107 As stated by one police captain, Whenever

the police department shirks its unbiased

responsibility, . . . the community then is in for real

trouble.108 For example, trouble can occur in the

following ways: (a) respect for law enforcement is

eroded,109 (b) residents of color become reluctant to

104 Id. 105 Pappas v. Giuliani, 290 F.3d 143, 147 (2d Cir. 2002). 106 Id. at 146-47. 107 Id. at 147. 108 Juby E. Towler, THE POLICE ROLE IN RACIAL CONFLICTS, 4-8 (1964), reprinted in THE ROLE OF POLICE IN AMERICAN SOCIETY: A DOCUMENTARY HISTORY, 174 (Brian Vila & Cynthia Morris eds., 1999). 109 Pappas v. Giuliani, 290 F.3d 143, 147 (2d Cir. 2002).

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report crimes or offer testimony as witnesses,110 and

(c) the police departments ability to recruit and

train personnel from the community will be

impaired.111 Thus, the presence of white

supremacists in police departments harms the

communities they serve.

C. Harms Society

White supremacist infiltration of law

enforcement harms society because white

supremacists become empowered by acquiring

knowledge and training in police tactics and

weapons.112 Their acquired expertise combined

with their extremist ideology present a potent

mix.113 Their ideology demonizes nonwhites,

blames them for societys ills, views them as

enemies, and seeks to extirpate them.114 The

110 Id. 111 Id. 112 Natl Gang Intelligence Center, 2011 National Gang Threat Assessment 33 (2011), available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends. 113 See Id. 114 Pete Simi & Robert Futrell, AMERICAN SWASTIKA: INSIDE THE WHITE POWER MOVEMENTS HIDDEN SPACES OF HATE, 90-91 (2010).

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following post on Whiterevolution.com reveals how

extreme white supremacy ideology can be:

Ni[ ][ ]ers dont have the ability to think. Lets put those fuckers on a rape table and beat them with chains and clubs, kick them shock them, hang them. Lets wall off an entire state, add the spics and jews in for good measure, and let them kill each other.115

The harm to society is readily evident when

white supremacist police officers hold these

extreme views when they also possess police

authority, training, and weapons.116

VI. REMEDYING THE PROBLEM BY DISCHARGING RACIST POLICE OFFICERS

Greater authority requires greater

accountability.117 Police officers great authority

requires that they be more accountable to the public

115 Id. at 91. 116 Natl Gang Intelligence Center, 2011 National Gang Threat Assessment 33 (2011), available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends. 117 Tim Prenzler, ETHICS AND ACCOUNTABILITY IN CRIMINAL JUSTICE: TOWARDS A UNIVERSAL STANDARD, 29 (2009).

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they serve.118 Greater accountability entails law

enforcement employers adopting a zero-tolerance

policy toward white supremacist law enforcement

officers. Public employers should respond to racist

officers by discharging them.119 As one former

Seattle police chief stated, the solution is to

discharge . . . employees who used racial slurs, or

who otherwise demonstrate[] contempt for the rule

of law in policing ethnic minority communities.120

Likewise, as noted by the FBIs intelligence

assessment on white supremacist infiltration of law

enforcement, the government can limit the

employment opportunities of [white supremacist]

group members who hold sensitive public sector

jobs, including jobs within law enforcement, when

118 Id. 119 This article focuses on discharge which is a post-hiring remedy. But another remedy is screening out racists in the pre-hiring phase. For example, a police chief in a Tennessee town is using lie detectors to screen out racists during the applicant process. Associated Press, Lie-Detector Tests Used to Keep Racists off Troubled Tennessee Police Force, Mar. 8, 2013, available at http://www.nj.com/news/index.ssf/2013/03/lie-detector_tests_being_used.html. 120 Norm Stamper, BREAKING RANK: A TOP COPS EXPOS OF THE DARK SIDE OF AMERICAN POLICING, 107 (2005).

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their membership would interfere with their

duties.121

Courts look favorably on law enforcement

employers who are sued by discharged officers

because police officers may be subject to stringent

rules and regulations that could not apply to other

government agencies.122 Police departments are

granted more latitude than an ordinary government

employer to make personnel decisions because

police forces are essentially paramilitary

organizations tasked with the mission of

maintaining public safety and order.123 Although

law enforcement employers must respect their

employees First Amendment free speech rights,

nonetheless, employers retain the freedom to

dismiss employees who do not meet the reasonable

requirements of their jobs.124 The cases below

reveal law enforcement employers who dismissed

121 Fed. Bur. of Investigation, Counterterrorism Division, Intelligence Assessment, White Supremacist Infiltration of Law Enforcement, 6 (Oct. 17, 2006), available at https://www.documentcloud.org/documents/402521-doc-26-white-supremacist-infiltration.html. 122 Tindle v .Caudell, 56 F.3d 966, 973 (8th Cir. 1995). 123 Id. at 971. 124 Locurto v. Guiliani, 447 F.3d 159, 163 (2006).

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police officers, and the dismissed officers

responded by filing free speech-infringement

claims,125 free association-infringement claims,126

claims in administrative proceedings,127 and claims

in arbitration.128 In all contexts, courts ruled in

favor of the government employer.129 Courts

support law enforcement employers who take action

to eliminate racism in their ranks.

A. Discharged Officers and Free Speech

Court decisions favor law enforcement

employers over discharged racist officers who file

lawsuits alleging infringement of their free speech

rights. Courts apply the Pickering test to analyze

125 See, e.g., Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696 (Md. 1993). 126 See, e.g., Weicherding v. Riegel, 981 F. Supp. 1143 (C.D. Ill. 1997). 127 See, e.g., Hicok v. Iowa Employment Appeal, 808 N.W.2d 755 (Iowa App. 2011) (Table). 128 See, e.g., Nebraska v. Henderson, 762 N.W.2d 1 (Neb. 2009). 129 See, e.g., Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696 (Md. 1993); Weicherding v. Riegel, 981 F. Supp. 1143 (C.D. Ill. 1997); Hicok v. Iowa Employment Appeal, 808 N.W.2d 755 (Iowa App. 2011) (Table); Nebraska v. Henderson, 762 N.W.2d 1 (Neb. 2009).

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free speech-infringement claims.130 If the individual

demonstrates that speech was a significant factor in

dismissal, then this test employs a two-part

inquiry.131 The first part determines whether the

disputed speech concerns public issues.132 If so,

the inquiry moves to the second part of the test in

which the court weighs the employer and

employees competing interests.133 Courts have

130 Pickering v. Board of Educ. of Township High School, 391 U.S. 563, 574 (1968) (holding that a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment). 131 Connick v. Myers, 461 U.S. 138, 154 (1983). 132 Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696, 700 (Md. 1993). The Garcetti Court recently added an employment duty requirement to the Pickering test. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the threshold issue has become whether the employee acted as a citizen or employee when engaging in speech. Speech made in the course of employment duties is not protected. Kraig P. Grahmann, Respect for Authority: Translating Enduring Principles Into Modern Law, 36 OHIO N.U.L. REV. 523, 534, 536 (2010). If the employment duty requirement is met, then the analysis may proceed to the public concern and balancing parts of the test. Id. The Garcetti framework increases the likelihood that government employers prevail over discharged officers in free speech infringement cases because Garcetti narrowed the free speech protection afforded to public employees. Paul M. Secunda, Garcettis Impact on the First Amendment Speech Rights of Federal Employees, 7 FIRST AMEND. L. REV. 117, 117-18 (2008). 133 Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696, 700 (Md. 1993).

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ruled against discharged officers under both parts of

the test.134

1. Discharged Officers Could Fail To Meet the Threshold Public Concern Part of the Test

Law enforcement employers may prevail in

litigation if discharged officers fail to meet the

threshold public concern requirement.135 Speech

that does not address matters of public concern is

not afforded constitutional protection.136

Determining if speech addresses a matter of public

includes examining a given statements content,

form, and context.137

134 See, e.g., Id.; Pappas v. Giuliani, 290 F.3d 143, 151 (2d Cir. 2002). 135 Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696, 700 (Md. 1993). 136 Id. 137 Tindle v .Caudell, 56 F.3d 966, 971 (8th Cir. 1995). In Tindle, a case involving suspension rather than discharge, the court affirmed the suspension of a police officer for attending a private party dressed in blackface, carrying a watermelon, and wearing a black, curly wig. Id. at 968. The officers speech did not address a matter of public concern he was merely [a]musing guests at private party with no showing of any intended message . . . . Id. at 970. By contrast, the Berger court ruled a police officer who was ordered to stop performing in blackface makeup in taverns and clubs did express speech on a matter of public concern because members of the

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a. Engaging In Nazi-Like Conduct

In Pruitt, the court held that two discharged

police officers were not entitled to First

Amendment protection when they engaged in Nazi-

like conduct because their speech did not concern

public issues.138 Their conduct included imitating

German World-War II characters from a television

show called Hogans Heroes, using exaggerated

German accents, performing the Hitler hand salute

and heel clicks, and uttering terms such as

achtung and sieg heil.139 Their Nazi parody was

not protected free speech because it failed to meet

the Pickering tests public concern threshold

requirement.140 First, regarding their speechs

content, they intended their parody to amuse and

joke, rather than comment on social issues, provoke

debate, or address current public issues.141 Second,

regarding their speechs location, their parody was

community willingly attended and sometimes paid to see his acts. Berger v. Battaglia, 779 F.2d 992, 993, 999 (4th Cir. 1985). 138 Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696, 699 (Md. 1993). 139 Id. at 699 n.1. 140 Id. at 702. 141 Id. at 701-02.

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not public, but, instead, was made in a private

setting seen only by Sheriff Department coworkers

and courthouse employees.142 Thus, the discharged

officers speech did not address matters of public

concern that called for constitutional protection.143

b. Writing A Racist Internal Agency Letter

In a case involving a federal border patrol

agent, the Federal Circuit affirmed the removal of a

border patrol agent from the Immigration and

Nationalization Service in part because the agent

wrote a letter containing insulting language

disparaging agency employees, including

Hispanics.144 The agent sent the letter to an agency

official to criticize the agencys I-293 Form that

notified aliens of hearings, hearing dates, and

hearing locations. The letter declared, The I-293

[Form] . . . could only have been designed by those

desiring to further the give-away [sic] of the U.S. to

142 Id. at 702. 143Id. at 699. 144 Mings v. Dept of Justice, 813 F.2d 384, 386 (Fed. Cir. 1987).

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[H]ispanics. After rhetorically asking why border

patrol agents continued to distribute I-293 Forms,

the letter informed that the aliens are either

Catholic, and have not studied the history of those

countries that are predominantly Catholic (all of

them are corrupt, backward, beggarly countries) or

they are too damned incompetent to break the aliens

off their lies . . . .145

The Federal Circuit held the agents letter

was not entitled to First Amendment protection

because his letter did not address a matter of public

concern, and, even if it did, the letters potentially

disruptive effect outweighed any public interest

addressed in the letter.146 First, his letter did not

address a matter of public concern and, instead,

was an internal agency grievance because (a) he

sent his letter to an agency official rather than to the

public, (b) he did not discuss the problem of the

rights of undocumented workers but instead

criticized an agency form (I-293), and (c) his racial

and religious prejudices against Hispanics and

145 Id. 146 Id. at 388.

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Catholics reflected his personal views rather than a

matter of public concern.147

Second, even if his letter had addressed a

matter of public concern, the letters potentially

disruptive effect on agency operations outweighed

any public interest addressed in the letter. The

letters anti-Hispanic and anti-Catholic biases

would have disrupted internal agency operations

because many border agents were Hispanic and

many agency employees were Catholic.148 Also, the

letters anti-Hispanic bias raised a serious question

as to whether the agent could perform his duties in

an unbiased manner when ninety-eight percent of

the aliens apprehended in the local area were

Hispanic.149

2. Discharged Officers Could Fail In the Balancing Part of the Test

If an officers speech addresses matters of

public concern, then the analysis may proceed to the

147 Id. 148 Id. at 388-89. 149 Id.

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balancing phase of the test.150 Here, courts have

also favored the law enforcement employer.

a. Participating In a Racist Parade Float

In Locurto, the Second Circuit ruled that

New York City lawfully terminated a white police

officer (and two firefighters) for participating in a

Labor Day parade float that racially stereotyped

African Americans.151 This racial-stereotyping

activity affirms white supremacy because white

supremacy includes action embodying the

ideological notion of biological, genetic, intellectual

or other inherent superiority of whites over other

population groups.152 Officer Locurto and other

float participants wore black lipstick, donned Afro

wigs, and dressed haphazardly in civilian clothing

(e.g., wearing overalls with no T-shirt).153 The float

was called Black to the Future-Broad Channel

150 Pruitt v. Howard County Sheriffs Dept, 623 A.2d 696, 700 (Md. 1993). 151 Locurto v. Guiliani, 447 F.3d 159, 183 (2d Cir. 2006). 152 Robert Crawford et al., The Northwest Imperative: Documenting a Decade of Hate, A-8 (1994) (emphases added). 153 Locurto v. Guiliani, 447 F.3d 159, 164 (2d Cir. 2006).

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2098 and displayed two buckets of Kentucky Fried

Chicken on the hood of a flatbed truck.154 The float

participants chanted No Justice, No Peace and

other slogans.155 One participant ate a watermelon

and threw the remains into the crowd.156 The

firefighters yelled, Crackers, were moving in.157

One of the firefighters simulated break

dancing.158 After the parade, a local news

broadcast and the New York Times reported on the

float. Reverend Al Sharpton and others protested

the float.159 The New York Police Department

terminated Officer Locurto.160

The Locurto court upheld Office Locurtos

termination.161 The court addressed the Pickering

tests first part by assuming that participation in the

float involved speech on a matter of public

154 Id. 155 Id. 156 Id. 157 Id. 158 Id. 159 Id. at, 165. 160 Id. at 167. 161 Id. at 183.

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concern.162 This answer shifted the analysis to the

Pickering tests second part, where the government

employer had the burden to show, first, that the

employees activity was likely to interfere with

Government operations, and, second, that the

employer responded based on that likely

interference rather than to retaliate against the

employee.163 If the government employer carried

this burden, then, finally, the court would weigh the

potential disruptiveness of the employees speech

against the value of the speech to the employee.164

In holding for the employer, first, the

Locurto court agreed with the New York City

Police Department that Officer Locurtos float

162 Id. at 175. The Locurto court bypassed the public concern test for two reasons. First, the public concern test might not apply to off-duty situations. Id. at 174. According to the court, the public concern test was intended by courts to address on-the-job expressive activity rather than off-duty activity at issue in the Locurto case. Id. Second, the court was free to assume the employee met the public concern part of the test because this assumption would not alter the outcome of the case for the reason that under the balancing part of the test, the court ruled in favor of the government employer. Id. at 175. As the court noted, given our resolution of the Pickering balancing test, infra [where the court weighed in favor of the employer], we can assume arguendo that the plaintiffs speech in this case did in fact relate to a matter of public concern. Id. 163 Id. at 176. 164 Id.

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parade activity likely interfered with government

operations because his activity instantiated public

perception of officers as racist.165 A day after the

parade, a local news station aired a segment titled

Racist Float that included video footage of the

float.166 Then, other news outlets disseminated the

story including the New York Times reporting that

New York City police officers and firefighters had

participated in the float.167 Public perception of

police behavior is relevant, reasoned the court,

because an officer is a public servant whose job

involves public contact.168

Second, the Locurto court found that the

government employer was legitimately motivated

Officer Locurtos discharge by concerns over

potential disruptions to police department

operations.169 Finally, in weighing the competing

interests, although Officer Locurtos First

Amendment interests were not insubstantial, the

165 Id. at 178. 166 Id. at 165. 167 Id. 168 Id. at 178. 169 Id. at 182.

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court nonetheless found that his interests were

outweighed by the City of New Yorks interest in

maintaining a relationship of trust between police

and fire departments and the communities they

serve . . . .170

b. Mailing Racist Materials

The Pappas case also shows how the law

enforcement employers interest outweighs the

employees racist free speech interest. The Pappas

court held the New York City Police Department

lawfully terminated a police officer who mailed

racially-bigoted materials because the Departments

interest in performing its mission outweighed the

officers free speech interest.171 Officer Thomas

Pappas received letters from an organization asking

for charitable donations.172 He used the reply

envelopes to mail his own racially bigoted flyers

that asserted white supremacy and ridiculed blacks

170 Id. at 183. 171 Pappas v. Giuliani, 290 F.3d 143, 151 (2d Cir. 2002). 172 Id. at 144.

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and Jews.173 The flyers warned of the Negro wolf .

. . destroying American civilization with rape,

robbery, and murder and inveighed against how

the Jews control the TV networks.174

In its analysis, the Pappas court assumed the

officers mailings constituted speech on a matter of

public concern.175 With the analysis moving to the

balancing part of the test, the court ruled the

Police Departments interest in fulfilling its mission

outweighed the officers free speech interest

because the officers racist flyers could (a) damage

the effectiveness of the Police Department in the

community, and (b) cause harm within the ranks of

the Police Department.176 First, the racist flyers

could damage the Police Departments effectiveness

in the community because the community would

view the police as oppressors rather than

protectors.177 The damage could be immense

because community members will less likely report

173 Id. at 144-45. 174 Id. at 144. 175 Id. at 146. 176 Id. at 147. 177 Id. at 146-47.

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crimes, offer witness testimony, or apply for police

jobs.178 Second, the racist flyers could cause harm

within the ranks of the Police Department by

promoting resentment, distrust and racial strife

between fellow officers.179 Thus, the law

enforcement employers interest in harmonious

personnel and community relations outweighed the

employees free speech interest.180

c. Sending Racist Emails

In Eaton, the government employer

suspended two Topeka detectives who sent racist

emails from home.181 The case began with Glenda

178 Id. 179 Id. 180 Id. 181 Eaton v. Harsha, 505 F. Supp. 2d 948, 953 (D. Kan. 2007). Although Eaton involves suspension rather than discharge, this case is still instructive by showing how courts favor law enforcement employers over employees in litigation. Public employees must successfully navigate a series of steps to succeed in their free speech claims. George Rutherglen, Public Employee Speech in Remedial Perspective, 24 J.L. & POL. 129, 135 (2008). The steps pose a nearly insurmountable series of obstacles to the employee. Id. The obstacles include the employee needing to first establish that the speech in question is protected at all. Id. Second, the interest in protecting such speech must be shown to outweigh any legitimate interest asserted in good faith by the employer. Id. Moreover, the government employer is granted considerably greater power to control the speech of its workers than the speech of the general public

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Overstreet, an African American and president of

the local NAACP, writing a newspaper column

questioning a court hearings fairness, in which the

court sentenced a young African American on drug

charges.182 Detective Kenneth Eaton read the

column, including where Overstreet referred to

herself as African American, which prompted him

to use his home email to write a response to the

editor asking: How is it in Africa? Have you ever

been there? If its so great in the home land, then

why are you here?183 Detective Eaton also

described the NAACP as a Government

Sponsored/Endorsed Hate group, questioned the

hiring of a black city manager, and declared that

being a colored person did not entitle the person

to a get out of trouble free card.184

because the governments efficiency interest is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. Helen Norton, Constraining Public Employee Speech: Governments Control of its Workers Speech to Protect Its Own Expression, 59 DUKE L.J. 1, 11 (2009) (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994)). 182 Eaton v. Harsha, 505 F. Supp. 2d 948, 949-50, 966 (D. Kan. 2007). 183 Id. at 950. 184 Id. at 950.

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The other detective, George Campbell, used

his home email to send a response directly to

Glenda Overstreet. His email stated, in part:

Glenda, can you explain why African-American, when I thought everyone born/raised/naturlized [sic] in the USA was an American? You seem to be more of a racist than anyone else. I was also very dissappointed [sic] in your last article in the Capital Journal, when you seemed to feel there was an injustice being served on the gentelman [sic] being sentenced on drug charges, just because of his race. Did it not occurr [sic] to you that he was being sentenced because he broke the law?185

Detective Eaton also sent an email to Glenda

Overstreet stating:

I do believe that it was some of the Africans that [c]hose to sell their own ... Also her sons [sic] business' is now public and is no longer private since he has been arrested. Or are we not improtant [sic] enough because of our skin color to do this. I

185 Id.

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think not! Glenda, you too stay tuned to the editorial pages.186

Detective Eaton was suspended for fifteen

days without pay and demoted to patrol officer.187

Detective Campbell was suspended for one day

without pay.188 Eaton and Campbell argued that the

disciplinary measures violated their First

Amendment rights, but the Eaton court

disagreed.189 Although the detectives speech

involved a matter of public concern, the court held

that the citys interest in effective and efficient law

enforcement outweighed the detectives free speech

interest.190 To balance the competing interests, the

court considered the disruption caused by the

detectives speech.191 The detectives statements

disrupted the Topeka Police Departments working

relationships because other African American

officers worried about and disliked the statements.

One African American officer viewed some of

186 Id. at 951. 187 Id. at 953. 188 Id. 189 Id. at 949. 190 Id. at 971. 191 Id. at 964.

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Eatons statements as similar to statements by white

supremacists.192 Also, the detectives statements

significantly disrupted the chief and other

supervisors day-to-day duties because the

controversy created by the statements disrupted the

office.193 Further, officers talked about the

controversy and listened to talk radio shows, and

did not focus on investigations.194

3. Discharging Officers for Off-Duty Speech

Courts favor law employment employers

when applying the Pickering test, even when a

police officer engages in off-duty expressive

activity.195 Being off-duty does not shield a police

officer from disciplinary action by a law

192 Id. at 965. 193 Id. at 966. 194Id. at 967. 195 See, e.g., Locurto v. Guiliani, 447 F.3d 159, 183 (2d Cir. 2006). See also David L. Hudson, Jr., Balancing Act: Public Employees and Free Speech, 3 FIRST REPORTS 1, 26 (2002), available at http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/03/FirstReport.PublicEmployees.pdf.

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enforcement employer.196 As one Illinois court

explained, It has long been settled in our state that

there is no distinction between off duty and on

duty misconduct by a police officer. Should a

police officer engage in misconduct which is

detrimental to the service, it would be absurd to say

that he is clothed with a cloak of immunity if such

misconduct occurred during off duty hours.197

In Locurto, the Second Circuit upheld the

discharge of a white police officer who engaged in

off-duty conduct when he participated in a parade

float that racially stereotyped African Americans.198

Although the Locurto court opined that it was more

sensible to treat off-duty speech as presumptively

entitled to First Amendment protection, the court

nonetheless upheld Office Locurtos termination.199

The court reasoned that the float activity potentially

disrupted police (and fire department) operations,

and City of New Yorks interest in preserving

196 Davenport v. Board of Fire & Police Commissioners of Peoria, 278 N.E.2d 212, 216 (Ill. App. 3d 1972). 197 Id. 198 Locurto v. Guiliani, 447 F.3d 159, 183 (2d Cir. 2006). 199 Id. at 175, 183.

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public trust between the police department and the

local communities outweighed the officers free

speech interests.200 Prior to Pickering,201 the

Reagan court also upheld a police officers

dismissal for his off-duty speech.202 In this 1955

case, a San Antonio police officer was dismissed for

making violent anti-Semitic and anti-Negro

statements while off-duty.203 Officer Reagan stated

to reporters that he was a Texas leader of the

National Association for the Advancement and

Protection of White People, that social equality with

Negroes was part of the Communist line, that

Negroes and others sought to mix the races through

inter-marriage, and that certain races and religions

sought to overthrow the white race.204 The police

department dismissed Officer Reagan based on

witnesses testimony that his racial prejudice hurt the

police departments morale and caused divisions

200 Id. at 182, 183. 201 Pickering v. Board of Educ. of Township High School, 391 U.S. 563 (1968). 202 Reagan v. Bichsel, 284 S.W.2d 935, 937 (Tex. Civ. App. 1955). 203 Id. at 936. 204 Id. at 936-37.

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within the local community.205 Officer Reagan

argued, in part, that he was entitled to free speech,

but the Reagan court disagreed stating, When one

submits to certain employments and services, he

may give up some of his freedoms.206

4. Discharging High-Ranking Officers

Holding a high rank or heading a department

does not shield police officers from discharge.207 In

Spetalieri, the court held that the City of Kingston

Police Departments interest in effectively

providing for the public safety outweighed the Head

of Narcotics Bureau and Officer Spetalieris free

speech interest.208 He was terminated after making

racist comments during a telephone conversation

wherein he stated, Ill be the first one to admit that

Im prejudice against fuckin ni[ ][ ]ers.209 He also

expressed his despise for African-Americans

moving into his neighborhood, and he opined that

205 Id. at 937. 206 Id. 207 Spetalieri v. Kavanaugh, 36 F. Supp. 2d 92, 106 (N.D.N.Y. 1998). 208 Id. 209 Id. at 100 n.3.

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three out of four African-Americans would land in

jail.210 These expressions of racial bias are

manifestations of a white supremacy outlook.211

Those individuals affiliated with such an outlook

should not be placed in governmental positions of

authority.212

The Spetalieri court ruled in favor of the

City because, first, the Citys prediction of police

department disruption was reasonable.213 The

City could reasonably conclude that the publics

belief that its local police officers were racially

biased could undermine the publics trust,

especially when Officer Spetalieri was head of the

Narcotics Bureau and responsible for investigating

drug activities in racially-diverse areas.214 Second,

the court ruled for the City because the potential for

disruption in the Kingston Police Department

outweighed Officer Spetalieris speech. The police

210 Id. 211 Benjamin D. Steiner & Victor Argothy, White Addiction: Racial Inequality, Racial Ideology, and the War on Drugs, TEMP. POL. & CIV. RTS. L. REV. 443, 447 (2001). 212 See Spetalieri v. Kavanaugh, 36 F. Supp. 2d 92, 106 (N.D.N.Y. 1998). 213 Id. 214 Id.

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have a significant interest in regulating police

officerss speech in order to promote public

confidence.215 The head of an important

department, such as the Narcotics Bureau, making

racist comments could undermine this public

confidence. The court noted that when race relations

are often tense, the public should not view

individuals in positions of authority, especially

those in law enforcement, as racially biased.216

In a similar case involving a high-ranking

officer, the Allen court held that Lewis-Clark State

Colleges termination of the Chief of Campus

Security did not violate his First Amendment free

speech right.217 During a firearms controversy on

campus, Chief Allen stated to the press, Theres

three or four colored guys on campus from

California who have been hassling the officers a

little bit.218 In a later statement to the press to

explicate his use of the colored term, he explained

215 Id. 216 Id. 217 Allen v. Lewis-Clark State College, 670 P.2d 854, 867 (Idaho 1983). 218 Id. at 856.

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that he was raised in the South where people called

the good ones colored and the bad ones ni[ ][

]ers.219 The Allen court upheld his termination

reasoning, in part, that he held a position with

special responsibilities as chief of security.220 The

Allen courts decision is not surprising, given that

the word ni[][]er is the ultimate expression of

white racism and white superiority, and that white

supremacists often use this derogatory term when

spreading their hate messages on the Internet.221

5. Discharging Officers for Potential Disruptions

In addition to considering actual disruptions,

courts also consider the police officers speechs

potential disruptions. [C]ourts give substantial

weight to an employers reasonable predictions of

disruption.222 The government employer is not

219 Id. at 857. 220 Id. at 866. 221 David Pilgrim & Phillip Middleton, Ni[][]er and Caricatures, JIM CROW MUSEUM OF RACIST MEMORABILIA, http://www.ferris.edu/jimcrow/caricature/ (last visited Oct. 11, 2013). 222 Eaton v. Harsha, 505 F. Supp. 2d 948, 967 (D. Kan. 2007) (quoting Waters v. Churchill, 511 U.S. 661, 673 (1994).

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required to allow events to unfold to the extent that

the disruption of the office and the destruction of

working relationship is manifest before taking

action.223 A law enforcement employer need only

show that an officers expressive activity was

likely to interfere with Government operations.224

In Locurto, the court upheld a police

officers discharge for participating in a racist

parade float because his activity likely interfered

with government operations.225 Likewise, in Eaton,

the court upheld the suspension of two detectives

for sending racist emails because of potential

interference with government operations.226 The

Eaton court considered the district attorneys

concern about unsuccessful prosecutions involving

Detectives Eaton and Campbell as witnesses if

defense attorneys made potential racial bias

arguments.227 The court also considered the police

223 Connick v. Myers, 461 U.S. 138, 152 (1983). 224 Locurto v. Guiliani, 447 F.3d 159, 176 (2d Cir. 2006) (emphasis added). 225 Id. at 178. 226 Eaton v. Harsha, 505 F. Supp. 2d 948, 971 (D. Kan. 2007). 227 Id. at 967.

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chiefs concern that the detectives racist emails

could bring the department into disrepute.228

B. Discharged Officers and Freedom of Association

Similar to freedom of speech-infringement

claims, a court looks favorably on the government

employer when a discharged officer makes a

freedom of association-infringement claim. A

freedom of association analysis also uses the

Pickering test.229 The Weicherding court applied the

Pickering test and ruled against a discharged

correctional officers freedom of association-

infringement claim.230 Wallace Weicherding was an

Illinois correctional officer as a sergeant whose

problematic activities included holding a Klan rally

at his house and distributing Klan literature that

declared, in part, There are thousands of

organizations working for the interest of Blacks. . . .

[W]e are faced with reverse discrimination . . . . We

228 Id. at 968. 229 Piscottano v. Murphy, 317 F. Supp. 2d 97, 105 (D. Conn. 2004). 230 Weicherding v. Riegel, 981 F. Supp. 1143, 1148-49 (C.D. Ill. 1997).

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of the Ku Klux Klan are unapologetically

committed to the interests, ideas, and cultural values

of the White Majority.231

The Weicherding court found that although

the officers activities touched upon a matter of

public concern, the Department of Corrections

interests outweighed the officers associational

interests.232 The Department of Corrections

interests included maintaining racial harmony in the

prison system and local community.233 The court

reasoned that permitting a Klan-affiliated sergeant

to continue working at the correctional facility

could send the message that the facility supported

the Klan and this message could ramify racial

tensions in the prison and local community.234

The Weicherding court considered the Curle

case, where the court reinstated a Klan correctional

officer because correction officials failed to provide

sufficient evidence of the detrimental impact of

Klan membership on correctional facility

231 Id. at 1147. 232Id. at 1147, 1148-49. 233 Id. at 1148. 234 Id. at 1148-49.

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operations.235 The Weicherding court disagreed

with the Curle majority, and, instead, found the

dissent more persuasive, approvingly quoting the

dissents statement that common sense is proof

enough of the effect prison guards who are

members of the Klan would have on a prison

population comprised mainly of Blacks and

[H]ispanics.236 For the Weicherding court, an

officers Klan membership could lead to racial

tension and incite violence; thus, the public

employers interest outweighed the public

employees associational interests.237

C. Discharged Officers and Administrative Proceedings

Courts have affirmed administrative

proceedings that ruled in favor of law enforcement

employers. In Hicok, the court agreed with the

Employment Appeal Board by affirming an Iowa

235 Curle v. Ward, 389 N.E.2d 1070, 1071 (N.Y. 1979). 236 Weicherding v. Riegel, 981 F. Supp. 1143, 1148 (C.D. Ill. 1997) (quoting Curle v. Ward, 389 N.E.2d 1070, 1071 (N.Y. 1979) (Wachtler, J. dissenting)). 237 Id. at 1148-49.

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state troopers termination for circulating racially

derogatory jokes in the workplace on multiple

occasions.238 On the first occasion, Sergeant Hicok

forwarded an email featuring mugshots of suspects,

including black suspects, wearing tee-shirts

supporting President Barack Obama.239 His added

comments to the forwarded email stated: Ive seen

some unique individuals aka SHITHEADS

wearing these type shirts myself .. He has quite a

fan base. Nice to know that the lowlifes are getting

involved in politics now.240 On the second

occasion, Sergeant Hicok printed a racially

derogatory joke that he received by email, and left it

on a secretarys desk.241 The joke involved a

Nigerian family of six con artists, an Islamic

group of seven welfare cheats, and LA, Hispanic,

Gang Banger, ex-cons all dying in a fire while a

white couple living in the same building survived

238 Hicok v. Iowa Employment Appeal, 808 N.W.2d 755, at *1 (Iowa App. 2011) (Table). 239 Id. 240 Id. 241 Id. at *2.

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because they were at work.242 On the final occasion,

Sergeant Hicok used his workplace laptop to show a

video to co-workers and subordinates.243 In the

video, a Hispanic comedian performed a comedy

sketch titled Wetback English that noted how

Hispanic immigrants took jobs from Caucasians and

instructed Caucasians to speak broken, wetback

English to get jobs.244

These actions violated various department

rules including the conduct unbecoming rules.245

Based on Sergeant Hicoks self-inflicted harms, the

court ruled that the government had good cause to

terminate Sergeant Hicok.246 As the court stated,

Hicoks job performance detracted from the

departments reasonable goal of having officers

treat all citizens impartially and fairly.247

In another administrative proceeding case,

the Jenkins court upheld the University Civil

Service Merit Boards discharge of a police officer

242 Id. at *2-*3. 243 Id. at *3. 244 Id. 245 Id. at *6. 246 Id. at *8. 247 Id. at *6.

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from the University Police Department of Southern

Illinois University for conduct unbecoming an

officer, including using abusive language toward a

fellow officer.248 The discharge officer had used the

word ni[ ][ ]er to refer to a fellow officer.249 The

discharged officer argued that the racial epithet was

not abusive because the exchange occurred among a

small group of men who were accustomed to one

another in this manner.250 The Jenkins court held,

however, that the evidence was sufficient to find the

officer guilty of using abusive language because

two black officers testified that they found the

language to be abusive.251

D. Discharged Officers and Arbitration

Finally, the court looks favorably on law

enforcement employers even when an arbitrator

rules in favor of a discharged officer. Courts are

cognizant of the public policy to defer to an

248 Jenkins v. Universities Civil Service Merit Board, 435 N.E.2d 804, 806 (Ill. App. 5th 1982). 249 Id. at 808. 250 Id. 251 Id.

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arbitrators decision, but they are also willing to

vacate an arbitral decision to uphold another public

policythat public servants enforce laws

equally.252 In Henderson, the court held that an

arbitrators reinstatement of a Klan patrol officer

violated Nebraska public policy that laws be

enforced free of racial discrimination.253 Officer

Hendersons journey into the Klan began when his

marriage dissolved after his wife left him for a

Hispanic man.254 Then, the officer paid a $35

membership fee to join a Klan group called the

Knights Party, whose declared goal was political

power and White Christian Revival.255 The

Knights Party application form asked an applicant

to declare the following: I am white and not of

racially mixed descent. I am not married to a

nonwhite. I do not date nonwhites no[r] do I have

nonwhite dependents.256 A welcoming letter from

252 See, e.g., Nebraska v. Henderson, 762 N.W.2d 1, 18 (Neb. 2009); Hartford v. Casati, No. CV000599086S, 2001 WL 1420512, at *2 (Conn. Super. Ct. Oct. 25, 2001). 253 Nebraska v. Henderson, 762 N.W.2d 1, 18 (Neb. 2009). 254 Id. at 9. 255 Id. 256 Id.

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the Knights Party national director exulted: Across

the nation we are recognized as the most devoted

and experienced movement in the struggle for White

rights, White Pride and White Power!257 Officer

Henderson received a membership card that read, in

part: I pledge my loyalty. I will work for the

preservation and protection of the White race.258

In ruling for the law enforcement employer,

first, the Henderson court viewed the Knights Party

to be equivalent to the historical Ku Klux Klan and

held that the historical Klan represents

discrimination, violence, and armed resistance to

lawful authority.259 Second, the court declared that

the principle that laws should be enforced without

regard to race as the most fundamental public

policy.260 Finally, the court ruled that allowing the

arbitrator to reinstate the Klan officer would

associate the State Patrol with the Klan and

undermine public confidence in the fairness of law

257 Id. at 10. 258 Id. 259 Id. at 14. 260 Id. at 14-16.

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enforcement and the law.261 The court, while

acknowledging that arbitration decisions are given

great deference, nonetheless declared that the public

policy favoring arbitration decisions should not

trump the public policy that laws should be

enforced free of racial bias.262

The Hartford court also ruled in favor of the

law enforcement employer and against the arbitrator

who had reinstated an officer who made racially

derogatory comments.263 Although involving

reassignment rather than termination, the

Hartford case is still instructive in showing how

courts give much weight to public policy arguments

made by law enforcement employers.264 The

Hartford court held that an arbitrators decision to

reinstate a police officer as Deputy Chief violated

public policy prohibiting workplace

discrimination.265 The government removed Deputy

Chief Casati from his position because he used

261 Id. at 18. 262 Id. 263 Hartford v. Casati, No. CV000599086S, 2001 WL 1420512, at *2 (Conn. Super. Ct. Oct. 25, 2001). 264 Id. 265 Id. at *5.

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vulgar language directed against women,

homosexuals, and people of color.266 His racial

slurs included ni[ ][ ]er, raisin head,

greaseball, third worlders, guido, and drunk

fucking micks.267 An arbitrator reinstated Casati as

deputy chief, but the Hartford court held the

arbitrators reinstatement decision excused

improper behavior and thus violated public

policy.268 First, the court found clear and well-

defined public policy prohibited racial (and gender)

workplace discrimination, based on state and

federal statutes, case law, a federal consent order

prohibiting offensive language by Hartford police

officers, and the Hartford police departments Code

of Conduct.269 Second, the court found that the

arbitrators decision violated this clear public policy

even though Officer Casati did not direct his slurs at

specific individual, and that police officers

frequently used such offensive language in police

266 Id. at *4. 267 Id. 268 Id. at *5. 269 Id. at *4.

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headquarters.270 Indeed, according to the court, the

frequency of discriminatory comments is reason to

remedy, not excuse, such behavior.271

In a third arbitration case, the Westbrook

court affirmed the discharge of a part-time

constable who uttered racial slurs in the

workplace.272 The constable, during a meeting with

fellow officers to discuss potential work

assignments, declared, Im not working with ni[ ][

]ers, Puerto Ricans or assholes . . . .273 Such racial

slurs reinforce white supremacy ideology.274 The

arbitration panel found that the government

terminated constable without just cause, and that he

entitled to back pay, but not reinstatement.275 The

terminated constable appealed arguing that public

policy required reinstating him in his prior

270 Id. at *5. 271 Id. at *6. 272 Westbrook Police Union v. Town of Westbrook, 6 A.3d 1164, 1166 (Conn. App. Ct. 2010). 273 Id. 274 Brenda J. Allen, Racial Harassment in the Workplace, in DESTRUCTIVE ORGANIZATIONAL COMMUNICATION: PROCESSES, CONSEQUENCES & CONSTRUCTIVE WAYS OF ORGANIZING, 164, 173 (Pamela Lutgen-Sandvik & Beverly Davenport Sypher eds., 2009). 275 Westbrook Police Union v. Town of Westbrook, 6 A.3d 1164, 1166 (Conn. App. Ct. 2010).

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constable position.276 The constable claimed that

failure to reinstate him violated the public policy of

requiring municipalities to engage in collective

bargaining.277 But the Westbrook court disagreed,

explaining that in light of [the constables] use of a

highly derogatory racial slur regarding his fellow

police officers, we find astonishing the plaintiffs

claim that considerations of public policy requires

his return to his law enforcement duties.278

VII. CONCLUSION

These cases show the persistence of white

supremacy ideology in law enforcement, even in the

modern era. Have police departments across the

United States ended racism in the ranks? Not

likely, according to Norm Stamper, a former chief

of the Seattle Police Department.279 A former

276 Westbrook Police Union v. Town of Westbrook, No. CV084009232, 2009 WL 2872680, at *4 (Conn. Super. Ct. Aug. 5, 2009). 277 Id. 278 Westbrook Police Union v. Town of Westbrook, 6 A.3d 1164, 1167 (Conn. App. Ct. 2010). 279 Norm Stamper, BREAKING RANK: A TOP COPS EXPOS OF THE DARK SIDE OF AMERICAN POLICING, 104 (2005).

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Minneapolis chief of police, Anthony Bouza,

conceded, Unquestionably, racism is endemic in

the ranks.280 He also stated, Race lies at the very

core of the issue of police abuse in America.281

The cases above show that law enforcement

employers in the modern era may take action by

discharging racially-biased law enforcement

employees. These employers need a zero-tolerance

approach that discharges racist officers because

white supremacy ideology endures; white

supremacists strategically infiltrate law

enforcement; and white supremacist officers with

badges, weapons, and authority pose great peril to

the local communities. The greatest threat to

civility, and civilization, is the surfeit of

certitude.282 White supremacists possess such

certitude. Their vision of untrammeled white purity

leaves little room for cultural and ethnic integration

and interconnection. Thus, achieving racial equality

280 Anthony V. Bouza, UNBOUND: CORRUPTION, ABUSE, AND HEROISM BY THE BOYS IN BLUE, 62 (2001). 281 Id. at 70. 282 George F. Will, ONE MANS AMERICA: THE PLEASURES AND PROVOCATIONS OF OUR SINGULAR NATION, 335 (2008).

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in policing is a worthy and necessary struggle for

police departments, the local communities, and

American society.

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LAW AND ORDER AND WHITE POWER: WHITE SUPREMACIST INFILTRATION OF LAW ENFORCEMENT AND THE NEED TO ELIMINATE RACISM IN THE RANKS -William Y. ChinI. IntroductionII. A legacy of white supremacy in law enforcementA. Colonial to Post-Civil War PeriodsB. Twentieth-Century Period

III. Continuing white supremacy in law enforcementIV. White supremacist strategies in infiltrating law enforcementV. The dangers of white supremacists in law enforcementA. Harms Police DepartmentsB. Harms the Communities They ServeC. Harms Society

VI. Remedying the problem by discharging racist police officersA. Discharged Officers and Free Speech1. Discharged Officers Could Fail To Meet the Threshold Public Concern Part of the Testa. Engaging In Nazi-Like Conductb. Writing A Racist Internal Agency Letter

2. Discharged Officers Could Fail In the Balancing Part of the Testa. Participating In a Racist Parade Floatb. Mailing Racist Materialsc. Sending Racist Emails

3. Discharging Officers for Off-Duty Speech4. Discharging High-Ranking Officers5. Discharging Officers for Potential Disruptions

B. Discharged Officers and Freedom of AssociationC. Discharged Officers and Administrative ProceedingsD. Discharged Officers and Arbitration

VII. Conclusion

Documents

White Supremacists in Law Enforcement & the need to eliminate it