White Supremacists in Law Enforcement & the need to eliminate it
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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.
Chin
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