The process required to properly address a police officer’s known identification with groups like the KKK or neo-Nazi skinheads, which have decades-long histories of violence, might seem arduous, but these are actually the easy cases. Far more frequently, law enforcement officers express bias in ways that are more difficult for police administrators to navigate.

New white supremacist organizations and other far-right militant groups can often form extemporaneously, then splinter, change names, and employ disinformation campaigns to mask their illicit activities, which makes it difficult to determine whether an officer’s affiliation with a particular group presents a conflict with law enforcement obligations or not. For instance, sheriff’s deputies in Washington State and Louisiana were fired in 2018 for publicly supporting and joining the Proud Boys, a far-right “Western chauvinist” fight club founded in 2016 that disavows racism but often acts in concert with white supremacist groups during violent rallies. footnote1_cehxcnx 1 Katie Shepherd, “Clark County Sheriff Deputy Fired After Wearing a Proud Boys Sweatshirt”; Luke Barnes, “Sheriff’s Deputy Fired After Social Media Posts Reveal Ties to Far-Right Proud Boys,” ThinkProgress, August 17, 2018, https://thinkprogress.org/sheriffs-deputy-fired-for-being-part-of-far-right-proud-boys-group-3d445cbbaf57/; and Emily Gorcenski, “The Proud Boys: A Republican Party Street Gang,” Political Research Associates, http://feature.politicalresearch.org/the-proud-boys. The East Hampton, Connecticut, police department came to a different conclusion about such an affiliation in 2019, however, and determined that an officer who joined the Proud Boys and paid membership fees did not violate department policies and would face no discipline. (The officer claimed to have left the group.) footnote2_pi2j9pi 2 Michael Kunzelman, “Chief: Officer’s Proud Boys Membership Didn’t Break Policy,” Associated Press, October 15, 2019, https://apnews.com/12ece8cedbf045259dcddebf619141e7.

Other law enforcement officials do not associate with white supremacist groups, but engage in overtly racist activities in public, on social media, or over law enforcement–only communication channels and internet chat rooms. In a 2019 report, the Plain View Project documented 5,000 patently bigoted social media posts by 3,500 accounts identified as belonging to current and former law enforcement officials. The report sparked dozens of investigations across the country. footnote3_wp6panp 3 Dakin Andone, “This Group Compiled Police Officer’s Offensive Facebook Posts. Now Departments are Taking Action,” CNN, June 20, 2019, https://www.cnn.com/2019/06/20/us/plain-view-project-police-investigating/index.html. The Philadelphia Police Department, for example, placed 72 officers on administrative duties pending an investigation into their racist social media activity, ultimately suspending 15 with intent to dismiss. Other officers will face disciplinary action, including suspensions, but will remain on the force. footnote4_eq6xlsi 4 Alicia Victoria Lozano, “13 Philadelphia Officers to Be Fired Over Racist, Violent Facebook Posts,” NBC10 Philadelphia, July 18, 2019, https://www.nbcphiladelphia.com/news/national-international/philadelphia-police-officers-facebook-posts/170494/; and Chris Palmer, “2 More Philly Cops to Be Fired in Facebook Probe, Bringing Total to 15,” Philadelphia Inquirer, September 11, 2019, https://www.inquirer.com/news/philadelphia-police-facebook-scandal-15-cops-fired-christine-coulter-20190911.html. Thirteen of 25 Dallas police officers investigated for objectionable social media postings received disciplinary actions ranging from counseling to suspensions without pay. footnote5_znehb2f 5 Cassandra Jaramillo, “Dallas Police Department Disciplines 13 Officers for Offensive Social Media Posts,” Dallas Morning News, January 30, 2020, https://www.dallasnews.com/news/crime/2020/01/31/dallas-police-department-disciplines-13-officers-for-offensive-social-media-posts/. Only 2 of the 22 current St. Louis police officers identified in the report were terminated. footnote6_tiapu8a 6 “2 St. Louis Police Officers Fired Over Facebook Posts,” Associated Press, December 10, 2019, https://www.cbsnews.com/news/prosecutor-adds-22-st-louis-officers-to-exclusion-list-over-racist-facebook-posts/. The St. Louis prosecutor placed all 22 of them on a list of police officers that her office would not call as witnesses, however. footnote7_snynggz 7 “Prosecutor Adds 22 St. Louis Officers to ‘Exclusion List’ Over Racist Facebook Posts,” CBS News, June 19, 2019.

The San Francisco Police Department attempted to fire nine officers whose overtly racist, homophobic, and misogynistic text messages were uncovered in a 2015 FBI police corruption investigation. After years of litigation, the California Supreme Court finally rejected the officers’ appeal in 2018, which paved the way for disciplinary action to proceed. footnote8_do2jcnb 8 Alan Pyke, “Racist, Homophobic SF Cops Will Likely Be Fired, After Years-Long Court Saga,” ThinkProgress, September 13, 2018, https://thinkprogress.org/sf-cops-who-exchanged-racist-homophobic-texts-will-likely-be-fired-after-years-long-court-saga-f94aa43ccc94/. As the case was pending, five other San Francisco police officers were found to have engaged in racist and homophobic texting, at times mocking the investigation of the earlier texts. footnote9_bj62e75 9 “DA: SFPD Officers Sent Recent Racist Texts Mocking the Racist Text Scandal,” SFist, March 31, 2016, https://sfist.com/2016/03/31/da_sfpd_officers_sent_even_more_and/. It is perhaps unsurprising then that in 2016 the Justice Department determined that San Francisco police officers stopped, searched, and arrested Black and Hispanic people at greater rates than white people even though they were less likely to be found carrying contraband. footnote10_a2uk2d2 10 Community Oriented Policing Services (COPS), Collaborative Reform Initiative: An Assessment of the San Francisco Police Department, Department of Justice, October 2016, xi, https://www.sfdph.org/dph/files/jrp/DOJ-Report.pdf. In a positive development, when the texting scandal broke in 2015, the San Francisco district attorney established a task force to review 3,000 criminal prosecutions that used testimony by the offending officers, dismissing some cases and alerting defense attorneys to potential problems in others. footnote11_u4d9knx 11 Maura Dolan, “3,000 Cases Possibly Affected by S.F. Police Texting, D.A. Says,” Los Angeles Times, May 7, 2015, https://www.latimes.com/local/lanow/la-me-ln-sf-police-probe-20150507-story.html.

In 2019, an internal U.S. Customs and Border Protection investigation revealed that 62 Border Patrol agents, including the agency’s chief, participated in a secret Facebook group that included racist, nativist, and misogynistic material, including threats to members of Congress. footnote12_ho6wuj1 12 Zolan Kanno-Youngs, “62 Border Agents Belonged to Offensive Facebook Group, Investigation Finds,” New York Times, July 15, 2019, https://www.nytimes.com/2019/07/15/us/politics/border-patrol-facebook-group.html; and Ryan Devereaux, “Border Patrol Chief Carla Provost Was a Member of Secret Facebook Group,” Intercept, July 12, 2019, https://theintercept.com/2019/07/12/border-patrol-chief-carla-provost-was-a-member-of-secret-facebook-group/. It is unclear whether disciplinary measures have been taken against these agents. The Border Patrol has tacitly supported vigilante activities by border militia groups on the Southwest border that have demonstrated a propensity for illegal violence over many years. footnote13_8ya3g92 13 Ryan Devereaux, “The Bloody History of Border Militias Runs Deep — And Law Enforcement Is Part of It,” Intercept, April 23, 2019, https://theintercept.com/2019/04/23/border-militia-migrants/.

Four Jasper, Alabama, police officers received two-week suspensions for making an “OK” hand signal in a group photograph after a drug bust. The controversial gesture signifies “white power” in the far-right subculture, but is also innocuous and commonplace in other contexts, which provides those who use it with cover to claim benign intentions. footnote14_aiizfra 14 David Neiwert, “Is That an OK Sign? A White Power Symbol? Or Just a Right-Wing Troll?,” Southern Poverty Law Center, September 19, 2018, https://www.splcenter.org/hatewatch/2018/09/18/ok-sign-white-power-symbol-or-just-right-wing-troll. In the context of the photograph, the intent of the gesture was clear, but the officers were allowed to remain on the job. footnote15_lx6f74e 15 John Bowden, “Alabama Police Officers Suspended for Making Hand Gestures Linked to White Power,” Hill, July 17, 2018, https://thehill.com/blogs/blog-briefing-room/news/397509-alabama-police-officers-suspended-for-making-hand-gesture. The mayor of Jasper suggested that the department may require diversity training in the future. footnote16_685lyja 16 Anna Beahm, “Jasper Police Officers Suspended for ‘White Power’ Hand Symbol in Post-Arrest Photo,” AL.com, July 17, 2018 (updated March 6, 2019), https://www.al.com/news/2018/07/jasper_officers_suspended_for.html.

There are cases when an officer’s conduct may indicate bias but does not necessarily justify termination, perhaps because of unclear policies. A photograph of a tattoo on the bare forearm of a Philadelphia police officer caused controversy when observers noted that it resembled Nazi iconography. The officer claimed he was not a Nazi and that the tattoo, which included a stylized eagle and the word “Fatherland,” simply represented his German heritage. footnote17_jrurk9k 17 Albert Samaha, “‘They Can’t Fire You for What’s in Your Head’: A Cop with a Tattoo He Swears Isn’t a ‘Nazi Tattoo’ Says a Lot About Police Free Speech,” Buzzfeed News, https://www.buzzfeednews.com/article/albertsamaha/they-cant-fire-you-for-whats-in-your-head. The department, which lacked a specific tattoo policy, cleared the officer of wrongdoing. It subsequently adopted a policy prohibiting “offensive, extremist, indecent, racist or sexist [tattoos] while on duty.” The officer in question was grandfathered in and allowed to remain on the job despite the tattoo, though he agreed to cover it while working. Previously published material linking the officer to a neo-Nazi group was reportedly not considered during the investigation, which determined that he had never “expressed any racial bias on the job.” footnote18_2nlz1cd 18 Samaha, “They Can’t Fire You.” The officer’s patrol duties were not altered, leaving members of the community concerned.

When a police department fails to address allegations of officer involvement in white supremacist activities in a timely and transparent manner, it can undermine the public’s perceptions of an entire department, particularly when use of force issues arise. For example, in Portland, Oregon, the National Lawyers Guild filed an excessive force lawsuit against a police officer who pepper-sprayed nonviolent antiwar protesters, including children and a TV camerawoman, in 2002 and 2003. footnote19_3m3apwz 19 Francesca Monga, “Tales of the Tape: Protesters Use Video Cameras to Track Overly Aggressive Cops,” Willamette Week, April 1, 2003 (updated January 24, 2017), https://www.wweek.com/portland/article-1904-tales-of-the-tape.html; and Nick Budnick, “The Badge and the Swastika: Lawyer Attacks Cop’s Interest in Nazi History,” Willamette Week, September 30, 2003 (updated January 24, 2017), https://www.wweek.com/portland/article-2506-the-badge-and-the-swastika.html. The city of Portland paid $300,000 to settle the lawsuit, but the officer was not disciplined and instead received a promotion. During the lawsuit, however, a whistleblower came forward and alleged that as a young man, the officer was an Adolf Hitler admirer who publicly shouted racist and homophobic rhetoric, vandalized property with Nazi graffiti, dressed in Nazi uniforms, and collected Nazi memorabilia. footnote20_hezeauf 20 Budnick, “The Badge and the Swastika.” A second longtime friend of the officer later confirmed these allegations and contended that the officer had maintained his Nazi ideology while working at the Portland Police Bureau. He provided evidence that the officer had, while working for the police department, illegally erected a memorial to five Nazi soldiers, including one SS officer suspected of war crimes, in a public park. footnote21_2nw8wwi 21 Budnick, “The Cop Who Liked Nazis.” The officer dismantled the shrine and someone reportedly stashed the plaque in the Portland city attorney’s office, where it remained undiscovered until after the brutality lawsuit had concluded. The officer later claimed that he was not a Nazi but just a “history geek.” footnote22_6mic6bo 22 James Pitkin, “The Ice Man Weepeth: A Portland Cop Denies a New Video’s Accusations of Nazism,” Willamette Week, October 13, 2009 (updated January 24, 2017), https://www.wweek.com/portland/article-11156-the-ice-man-weepeth.html.

In 2010, the Portland Police Bureau suspended the officer for two weeks for erecting the Nazi shrine. footnote23_0tfm25r 23 Maxine Bernstein, “Portland Police Chief Suspends Capt. Mark Kruger for Erecting a Shrine on Rocky Butte to Five Nazi-Era Soldiers,” Oregonian, November 17, 2010 (updated January 10, 2019), https://www.oregonlive.com/portland/2010/11/portland_police_chief_suspends_1.html. However, Portland rescinded this disciplinary action in 2014 in order to settle a defamation lawsuit the officer had filed against a superior who called him a Nazi. footnote24_jox8w6d 24 Maxine Bernstein, “Portland Police Capt. Mark Kruger’s Past Discipline to Be Erased — Including for Tribute to Nazi-Era Soldiers — under City Settlement,” Oregonian, July 16, 2014 (updated January 10, 2019), https://www.oregonlive.com/portland/2014/07/portland_police_capt_mark_krug.html The officer then continued to be promoted to positions of authority within the bureau.

This history became relevant because the Portland Police Bureau was again accused of bias in its response to a series of violent rallies instigated by far-right militants and white supremacist groups from 2016 through 2019. Portland police and DHS agents appeared inappropriately sympathetic to violent members of the far-right groups, while conducting mass arrests and indiscriminately using less-lethal munitions against antiracist and antifascist counterprotesters. footnote25_9iezw95 25 Maxine Bernstein, “‘Kettling’ of Counter-Protesters Last June Not Legally Justified, Review Says,” Oregonian, May 31, 2018 (updated January 30, 2019), https://www.oregonlive.com/portland/2018/05/portland_police_oversight_repo.html; and Jason Wilson, “Portland Far-Right Rally: Police Charge Counterprotesters with Batons Drawn,” Guardian, August 5, 2018, https://www.theguardian.com/us-news/2018/aug/04/patriot-prayer-to-carry-guns-at-portland-rally-as-fears-of-violence-rise. DHS officers were captured on video soliciting the assistance of militia members to arrest antiracist protesters. footnote26_p99335y 26 Arun Gupta, “Playing Cops: Militia Member Aids Police in Arresting Protester at Portland Alt-Right Rally,” Intercept, June 8, 2017, https://theintercept.com/2017/06/08/portland-alt-right-milita-police-dhs-arrest-protester/.

A draft report of an Independent Police Review investigation into the bureau’s response to the rallies appeared to substantiate these concerns. It quoted a police lieutenant who “felt the right-wing protesters were ‘much more mainstream’ than the left-wing protesters.” footnote27_nkubj1t 27 Katie Shepherd, “Portland Police Saw Right-Wing Protesters as ‘Much More Mainstream’ than Leftist Ones,” Willamette Week, June 27, 2018, https://www.wweek.com/news/courts/2018/06/27/portland-police-saw-right-wing-protesters-as-much-more-mainstream-than-leftist-ones/. Allegations of the bureau’s bias surfaced again when Willamette Week, Portland’s alternative weekly newspaper, published friendly text messages between a Portland Police Bureau lieutenant and the out-of-state leader of a far-right group whose members had engaged in violence at these rallies. The texts included advice on how one member with an active warrant could avoid arrest and details about the movements of opposing groups. footnote28_ogs3n6i 28 Katie Shepherd, “Texts Between Portland Police and Patriot Prayer Ringleader Joey Gibson Show Warm Exchange,” Willamette Week, February 14, 2019, https://www.wweek.com/news/courts/2019/02/14/texts-between-portland-police-and-patriot-prayer-ringleader-joey-gibson-show-warm-exchange/. The bureau later claimed the texts were intended to gather intelligence and cooperation from the far-right group to prevent violence at the rallies. footnote29_1ic6g40 29 Maxine Bernstein, “Portland Cop’s Chatty Texts to Patriot Prayer Spur Outrage but Are Standard Police Strategy, Experts Say,” Oregonian, February 16, 2019, https://www.oregonlive.com/crime/2019/02/police-experts-weigh-in-on-portland-lieutenants-controversial-text-messages-with-patriot-prayer-leader.html. The FBI brought no charges even though several of the violent far-right militants had traveled interstate in order to engage in the rallies.

In May 2019, the Portland City Council hired a private police auditing company to conduct an independent investigation of the police bureau’s response to the far-right protests. footnote30_4ai4nqn 30 Conrad Wilson, “Portland Hires National Group to Investigate How Police Handle Protests,” Oregon Public Broadcasting, May 15, 2019, https://www.opb.org/news/article/portland-national-police-foundation-investigation-protests/. To date, the auditing company has held no public hearings and issued no progress reports.

The Portland Police Bureau was not the only law enforcement agency criticized for its apparent bias as white supremacists and far-right militants engaged in violent protests around the country. California Highway Patrol investigators treated neo-Nazi skinheads who stabbed antiracist counterprotesters at a 2016 Sacramento rally as victims and sought their cooperation in investigating the counterprotesters and a wounded Black journalist. footnote31_jf3mr7b 31 Sam Levin, “California Police Worked with Neo-Nazis to Pursue ‘Anti-Racist’ Activists, Documents Show,” Guardian, February 9, 2018, https://www.theguardian.com/world/2018/feb/09/california-police-white-supremacists-counter-protest; Sam Levin, “Stabbed at a Neo-Nazi Rally, Called a Criminal: How Police Targeted a Black Activist,” Guardian, May 25, 2018, https://www.theguardian.com/world/2018/may/25/neo-nazi-rally-california-stabbing-police-target-black-activist; Sam Levin, “How a California Officer Protected Neo-Nazis and Targeted Their Victims,” Guardian, January 25, 2019, https://www.theguardian.com/us-news/2019/jan/25/california-police-neo-nazis-antifa-protest. Police in Anaheim, California, arrested seven antiracism protesters at a KKK rally in 2016, but did not charge the Klansman who stabbed three people. footnote32_lrkklap 32 A. C. Thompson, “Federal Judge Dismisses Charges Against 3 White Supremacists,” Frontline, PBS, June 4, 2019, https://www.pbs.org/wgbh/frontline/article/federal-judge-dismisses-charges-against-3-white-supremacists/.

In Huntington Beach, California, park police refused to investigate the battery of OC Weekly journalists by members of the white supremacist Rise Above Movement at a 2017 pro–Donald Trump march, citing a lack of resources. The Orange County district attorney did, however, prosecute an antifascist protester who attempted to defend the journalists by slapping one of the white supremacist attackers. footnote33_dux44y4 33 Frank John Tristan, “Rise Above, Unmasked: A Former Weekly Intern Recalls How His Surf City Assault Became an FBI Criminal Probe into an Alt-Right Group,” OC Weekly, November 8, 2018, https://www.ocweekly.com/rise-above-unmasked-a-former-weekly-intern-recalls-how-his-surf-city-assault-became-an-fbi-criminal-probe-into-an-alt-right-group/; and R. Scott Moxley, “DA Whitewashed Neo-Nazi in Assault Trial from 2017 Trump MAGA Rally,” OC Weekly, August 21, 2019, https://www.ocweekly.com/white-supremacist-antifa-trump/#.XV4Die-38AR.twitter. The FBI later charged four members of the Rise Above Movement for engaging in violence at a series of riots, including the Huntington Beach attack, but a federal judge dismissed the charges, arguing that the 50-year-old Anti-Riot Act was unconstitutional. footnote34_4ux1c10 34 Thompson, “Federal Judge Dismisses Charges.”

In 2019, a group of Proud Boys in Washington, DC, disrupted a permitted flag burning by members of a communist group in front of the White House, instigating a scuffle. DC police arrested two of the communists but escorted the Proud Boys away. Some officers fist-bumped them as they later walked into a bar. An investigation determined that the officers had not violated any police policies. footnote35_0nfysmz 35 Rachel Kurzius, “D.C. Police Can’t Determine Whether Officers Who Fist Bumped Proud Boy on July 4 Violated Policy,” DCist, February 7, 2019, https://dcist.com/story/20/02/07/officers-who-fist-bumped-proud-boy-on-july-4-didnt-violate-policy-d-c-police-determine/.

Not only does the U.S. Justice Department fail to properly prioritize investigations of white supremacist violence and hate crimes, it also fails to utilize all necessary resources to address police violence and racism. footnote1_jnnkemk 1 See Michael German and Sara Robinson, “Wrong Priorities on Fighting Terrorism,” Brennan Center for Justice, October 31, 2018, https://www.brennancenter.org/our-work/research-reports/wrong-priorities-fighting-terrorism. Federal prosecutors declined to prosecute 96 percent of FBI civil rights investigations involving police misconduct from 1995 to 2015, turning down more than 12,700 complaints, according to a Reuters analysis of DOJ records. footnote2_ejw36pp 2 Brian Bowling and Andrew Conte, “Trib Investigation: Cops Often Let Off Hook for Civil Rights Complaints,” Tribune-Review, March 12, 2016, https://archive.triblive.com/news/nation/trib-investigation-cops-often-let-off-hook-for-civil-rights-complaints/.

Federal prosecutors do face a high evidentiary bar when bringing criminal cases against law enforcement officials, which require proof that the officers willfully intended to violate the victim’s civil rights in their use of force. footnote3_fbrchg3 3 “Justice Department Rejects 96% of Civil Rights Cases Against Police — Report,” Guardian, March 14, 2016, https://www.theguardian.com/us-news/2016/mar/14/justice-department-rejects-civil-rights-cases-against-police. It is not enough to prove that an officer’s intentional use of excessive force resulted in a denial of a victim’s constitutional rights. The civil rights statute that covers police brutality, 18 U.S.C. § 242, requires prosecutors to prove that police officers intended to use excessive force and that they did so with the specific intent to violate the victim’s constitutional rights. footnote4_dbs7hzs 4 Andrea J. Ritchie and Joey L. Mogul, “In the Shadows of the War on Terror: Persistent Police Brutality and Abuse of People of Color in the United States,” DePaul Journal for Social Science 1 (2016): 234–35, https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1075&context=jsj. See Screws v. United States, 325 U.S. 91, 101 (1945); and United States v. Guest, 383 U.S. 745, 761 (1966).

The Justice Department has been delinquent in gathering data about overtly racist police conduct. The lack of a federal database that tracks this type of misconduct or membership in white supremacist or far-right militant groups makes discovering evidence of intent more difficult. The FBI only began collecting data on law enforcement use of force in 2018, after Black Lives Matter and other police accountability groups pushed for more federal oversight of police violence against people of color. footnote5_wui2glx 5 Erin Donaghue, “In a First, FBI to Begin Collecting National Data on Police Use of Force,” CBS News, November 22, 2018, https://www.cbsnews.com/news/fbi-to-begin-collecting-national-police-use-of-force-data/. This is a positive step, but the data relies on voluntary reporting by law enforcement agencies, a methodology which has led to serious deficiencies in hate crime reporting.

In addition to criminal penalties, the Justice Department also has the authority under 42 U.S.C. § 14141 and § 3789d(c)(3) to bring civil suits against law enforcement agencies if it can demonstrate a “pattern or practice” of civil rights violations. footnote6_eziabuk 6 “Addressing Police Misconduct Laws Enforced by the Department of Justice,” United States Department of Justice, updated December 13, 2019, https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice. Civil suits have a lower evidentiary bar, but they target department-wide problems rather than individual officers’ misconduct. These cases often reach settlement agreements or “consent decrees,” which provide for a period of DOJ oversight of agreed upon reform efforts. The Obama administration opened 20 pattern and practice investigations of police departments, doubling the number initiated by the Bush administration, and entered into at least 14 consent decrees with police agencies. footnote7_87z31tl 7 Mike Levine, “Why the Justice Department’s Review of Police Agreements Matters,” ABC News, April 4, 2017, https://abcnews.go.com/Politics/justice-departments-review-police-agreements-matters/story?id=46566294. The Justice Department has not developed metrics to evaluate the effectiveness of these efforts in curbing police violence or civil rights abuses, however. footnote8_42n629s 8 Kimbriell Kelly, Sarah Childress, and Steven Rich, “Forced Reforms, Mixed Results,” Washington Post, November 13, 2015, https://www.washingtonpost.com/sf/investigative/2015/11/13/forced-reforms-mixed-results/?utm_term=.d816a65b1e6b.

The Trump administration abandoned police reform efforts championed by Obama’s Justice Department. Attorney General Jeff Sessions ordered a review of civil rights pattern and practice cases and, on his last day in office, signed a memo establishing more stringent requirements for Justice Department attorneys seeking to open them, which limited the utility of this tool in curbing systemic police misconduct. footnote9_6sjz90a 9 Katie Benner, “Sessions, in Last-Minute Act, Sharply Limits Use of Consent Decrees to Curb Police Abuses,” New York Times, November 8, 2018, https://www.nytimes.com/2018/11/08/us/politics/sessions-limits-consent-decrees.html; and Office of the U.S. Attorney General to Heads of Civil Litigating Components, United States Attorneys, “Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities,” memorandum, November 7, 2018, https://www.justice.gov/opa/press-release/file/1109621/download. Sessions also killed a program operated by the DOJ Office of Community Oriented Policing Services that evaluated police department practices and offered corrective recommendations in a more collaborative way that avoided litigation. Attorney General William Barr has indicated similar disdain for law enforcement oversight, once threatening that communities that do not give support and respect to law enforcement “might find themselves without the police protection they need.” footnote10_s1qo3fj 10 Joshua Clark Davis, “William Barr’s Police-Fueled War on Civil Rights,” Nation, December 27, 2019, https://www.thenation.com/article/archive/barr-police-civil-rights/; and U.S. Department of Justice, “Third Annual Attorney General’s Award for Distinguished Service in Policing,” video, December 3, 2019, https://www.justice.gov/opa/video/third-annual-attorney-general-s-award-distinguished-service-policing.

The Justice Department offers civil rights and implicit bias training to law enforcement and often mandates it in consent decrees following pattern and practice lawsuits. While this training may be important to help sensitize law enforcement to unconscious bias, its effectiveness in curbing police bias remains unproven. footnote11_u8erwn6 11 See Ari Feldman, “Activists Want Bias Training for Cops. ADL Provides It. But Does It Work?,” Forward, June 17, 2020, https://forward.com/news/national/448948/police-george-floyd-protest-implicit-bias/; Tomas Chamorro-Premuzic, “Implicit Bias Training Doesn’t Work,” Bloomberg Opinion, January 4, 2020, https://www.bloomberg.com/opinion/articles/2020-01-04/implicit-bias-training-isn-t-improving-corporate-diversity?sref=LSnlJj5m; Michael Hobbes, “‘Implicit Bias’ Trainings Don’t Actually Change Police Behavior,” Huffington Post, June 12, 2020, https://www.huffpost.com/entry/implicit-bias-training-doesnt-actually-change-police-behavior_n_5ee28fc3c5b60b32f010ed48; and Jeremy Stahl, “The NYPD Paid $4.5 Million for a Bias Trainer. She Says She’s Not the Solution,” Slate, June 18, 2020, https://slate.com/news-and-politics/2020/06/lorie-fridell-implicit-bias-policing.html. An obvious deficiency in implicit training sessions is the failure to address overt racism and white supremacy within law enforcement. A police trainer quoted in The Atlantic said overt racism is “just something that you don’t admit. . . . If we admit that, then what does it mean about how we serve the public?” footnote12_e7y6kmb 12 Tom James, “Can Cops Unlearn Their Unconscious Biases?,” Atlantic, December 23, 2017, https://www.theatlantic.com/politics/archive/2017/12/implicit-bias-training-salt-lake/548996/. Another told The Forward, “If [antibias training] is not presented in a very nimble way, officers will assume that what you’re saying is that officers are racist. . . . In my experience, that has tended to close officers up to whatever content you provide.” A third trainer told MSN.com, “When they walk into the classroom, the officers are somewhere between defensive and downright hostile. They think we’re gonna shake our fingers at them and call them racist.” Some studies suggest that implicit bias training can even be counterproductive by reinforcing racial stereotypes. footnote13_nw0z0jf 13 Michelle M. Duguid and Melissa C. Thomas-Hunt, “Condoning Stereotyping? How Awareness of Stereotyping Prevalence Impacts Expression of Stereotypes,” Journal of Applied Psychology 100 (2015): 343–59, https://pubmed.ncbi.nlm.nih.gov/25314368/; and “Ironic Effects of Anti-Prejudice Messages,” Association for Psychological Science, July 6, 2011, https://www.psychologicalscience.org/news/releases/ironic-effects-of-anti-prejudice-messages.html.

During the June 2019 House oversight committee hearing discussed earlier in this report, Representative Clay asked Deputy Assistant Director Calvin Shivers, who manages the FBI’s civil rights section, whether the bureau provides any resources or training to state and local police departments to help them identify white supremacists attempting to infiltrate their agencies. footnote14_qxnqc52 14 Confronting Violent White Supremacy (Part II), 22–23. Shivers said the training that the FBI’s civil rights section provides to law enforcement is focused on helping them identify hate crimes that may occur within their jurisdictions. He did not identify any training focused on identifying and weeding out officers who actively participate in white supremacist and far-right militant groups.

The continued presence of even a small number of far-right militants, white supremacists, and other overt racists in law enforcement has an outsized impact on public safety and on public trust in the criminal justice system and cannot be ignored. Leaving individual agencies to police themselves in a piecemeal fashion has not proven effective at restoring public confidence in law enforcement. Instead, there should be a comprehensive plan — one that involves federal, state, and local governments — to ensure that law enforcement agencies do not tolerate overtly racist conduct. The final section of this paper proposes several recommendations to include in such a plan.

The police response to nationwide protests that followed the murder of George Floyd in May 2020 includes a number of officers across the country flaunting their affiliation with far-right militant groups. A veteran sheriff’s deputy monitoring a Black Lives Matter protest in Orange County, California, was photographed wearing patches with logos of the Three Percenters and the Oath Keepers — far-right militant groups that often challenge the federal government’s authority — affixed to his bulletproof vest. After an activist group publicized the photograph, the sheriff said it was “unacceptable” for the deputy to wear the patches and placed him on administrative leave pending an investigation. footnote1_reeuky3 1 Sara Cardine, “O.C. Sheriff’s Officials Investigating Deputy Seen Wearing Extremist Insignia at Costa Mesa Protest,” Los Angeles Times, June 3, 2020, https://www.latimes.com/socal/daily-pilot/news/story/2020-06-03/o-c-sheriffs-officials-investigating-deputy-seen-wearing-extremist-insignia-at-costa-mesa-protest.

A 13-year veteran of the Chicago Police Department is under investigation after photographs surfaced that showed him wearing a face covering with a Three Percenters’ logo while on duty at a protest, though a supervisor was pictured with him at the scene and apparently did not complain. footnote2_b0qjmad 2 “CPD Investigating After Officer Wore Extremist Militia Logo to Downtown Protest Saturday,” CBS Chicago, June 9, 2020, https://www.msn.com/en-us/news/us/cpd-investigating-after-officer-wore-extremist-militia-logo-to-downtown-protest-saturday/ar-BB15dByT. The officer had reportedly been the subject of several previous misconduct lawsuits, including an excessive use of force suit following a nonfatal shooting. The city of Chicago paid $400,000 to settle those suits.

In Salem, Oregon, a police officer was recorded on video asking heavily armed white men dressed like militia to step inside a building or sit in their cars while the police arrested protesters for failing to comply with curfew orders, “so we don’t look like we’re playing favorites.” After a public outcry, the Salem police chief apologized for the appearance of favoritism, but determined the officer was only trying to gain the militants’ compliance with the curfew. footnote3_53wkto4 3 Katherine Cook, “Salem Police Chief Apologizes in Response to Viral Video of Officer with Armed Group,” KGW (Portland, OR), June 6, 2020, https://www.kgw.com/article/news/local/protests/salem-police-chief-apologizes-in-response-to-viral-video-of-officer/283-d7f4ce66-6f8d-4a25-a478-ae3999648d51.

A police officer in Olympia, Washington, was placed under investigation for posing in a photograph with a heavily armed militia group called Three Percent of Washington. One of the militia members posted the photograph on social media, claiming that the officer and her partner had come over to thank them as they guarded a local shopping center. footnote4_hzd88yk 4 Chuck Tanner and Devin Burghart, “Three Percenters Pose With Olympia Police Officer, Sparks Need for Thorough Investigation,” Institute for Research and Education on Human Rights, June 18, 2020, https://www.irehr.org/2020/06/18/three-percenters-pose-with-olympia-police-officer-sparks-need-for-thorough-investigation/#_ftn3.

In Philadelphia, police officers stood by and failed to intervene when mostly white mobs armed with bats, clubs, and long guns attacked journalists and protesters. footnote5_08awctb 5 Anna Orso, “Police Under Fire for ‘Coddling’ Violent Groups of White People in Fishtown, South Philly,” Philadelphia Inquirer, June 26, 2020, https://www.inquirer.com/news/philadelphia/philadelphia-protests-marconi-plaza-fishtown-south-philadelphia-protests-20200626.html. The district attorney has vowed to investigate the matter. The following month, however, Philadelphia police officers openly socialized with several men wearing Proud Boys regalia and carrying a Proud Boys flag at a “Back the Blue” party at the Fraternal Order of Police Lodge. footnote6_cp08yoi 6 Jeremy Roebuck, Ellie Rushing, and Oona Goodin-Smith, “Philly’s Police Union Says It Didn’t Invite Proud Boys to a Pence After-Party. It Didn’t Ask Them to Leave, Either,” Philadelphia Inquirer, July 10, 2020, https://www.inquirer.com/news/proud-boys-philly-police-fop-mike-pence-mcnesby-trump-alt-right-20200710.html.

The affinity some police officers have shown for armed far-right militia groups at protests is confounding given that many states, including California, Illinois, Oregon, Pennsylvania, and Washington, have laws barring unregulated paramilitary activities. footnote7_nnuorq0 7 “Prohibiting Private Armies at Public Rallies: A Catalogue of Relevant State Constitutional and Statutory Provisions,” Institute for Constitutional Advocacy and Protection, February 2018, https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohibiting-Private-Armies-at-Public-Rallies.pdf. And it is most troubling because far-right militants have often killed police officers. The overlap between militia members and the Boogaloo movement — whose adherents have been arrested for manufacturing Molotov cocktails in preparation for an attack at a Black Lives Matter protest in Nevada, inciting a riot in South Carolina, and shooting, bombing, and killing police officers in California — highlights the threat that police engagement with these groups poses to their law enforcement partners. footnote8_kjr8xj2 8 Assessing the Threat from Accelerationists and Militia Extremists: Hearing Before the Subcomm. on Intelligence and Counterterrorism of the H. Comm. on Homeland Security, 116th Cong. 12 (2020) (statement of Heidi L. Beirich, cofounder and executive vice president, Global Project Against Hate and Extremism), https://homeland.house.gov/imo/media/doc/Testimony%20-%20Beirich.pdf; and Robert Gearty, “2 Affiliated with ‘Boogaloo’ Extremist Group Charged with Inciting a Riot: SC Sheriff,” Fox News, June 6, 2020, https://www.foxnews.com/us/2-affiliated-with-boogaloo-extremist-group-charged-with-inciting-a-riot-sc-sheriff; Dan Noyes, “I-Team: Air Force Sergeant Arrested on Suspicion for Killing of Deputy in Santa Cruz County,” ABC7 News (San Francisco), June 8, 2020, https://abc7news.com/steven-carrillo-santa-cruz-carillo-california-sheriff-deputy-killed/6236742/.

Federal, State, and Local Law Enforcement Agencies

The failure of federal, state, and local law enforcement agencies to aggressively respond to evidence of explicit racism among police officers undermines public confidence in fair and impartial law enforcement. Worse, it signals to white supremacists and far-right militants that their illegal acts enjoy government approval and authorization, making them all the more brazen and dangerous. Winning back public trust requires transparent and equal enforcement of the law, effective oversight, and public accountability that prioritizes targeted communities’ interests.

Where police officers are found to be involved in white supremacist or far-right militant activities, racist violence, or related misconduct, police departments should initiate mitigation plans designed to ensure public safety and uphold the integrity of the law. Mitigation plans could include referrals to prosecutors, dismissals, other disciplinary actions, limitations of assignments to reduce potentially problematic contact with the public, retraining, and intensified supervision and auditing. Law enforcement officials and prosecutors have an obligation to provide defendants exculpating information in their possession, including information about police witnesses’ misconduct that may reasonably impeach their testimony. Prosecutors should include officers known to have engaged in overtly racist behavior to Brady lists. footnote1_uwzsjge 1 Vida B. Johnson, “KKK in the PD,” 205, 234. These lists should be shared among federal, state, and local prosecutors’ offices to ensure fair trials for all defendants in all jurisdictions.

The most effective way for law enforcement agencies to restore public trust and prevent racism from influencing law enforcement actions is to prohibit individuals who are members of white supremacist groups or who have a history of explicitly racist conduct from becoming law enforcement officers in the first place, or from remaining officers once bias is demonstrated. All law enforcement agencies should do the following:

• Establish clear policies regarding participation in white supremacist organizations and other far-right militant groups, and on overt and explicit expressions of racism — with specificity regarding tattoos, patches, and insignia as well as social media postings. These policies should be properly vetted by legal counsel to ensure compliance with constitutional rights, state and local laws, and collective bargaining agreements, and they must be clearly explained to staff.
• Hire a diverse workforce to more accurately reflect the demographic makeup of the communities the agency serves, and promote them fairly through the ranks.
• Establish mitigation plans when biased police officers are detected. Mitigation plans could include referrals to internal affairs, local prosecutors, or the DOJ for investigation and prosecution; termination or other disciplinary action; limitations of assignments to reduce potentially problematic contact with the public; retraining; and intensified supervision and auditing.
• Establish reporting mechanisms to ensure evidence of overtly racist behavior by a police officer is provided to prosecutors and employ Brady lists or similar reporting mechanisms to ensure defendants receive notice.
• Encourage whistleblowing and protect whistleblowers.

Federal Government

The Justice Department has acknowledged that law enforcement involvement in white supremacist and far-right militia organizations poses an ongoing threat, but it has not produced a national strategy to address it. Not only has the department failed to prosecute police officers involved in patently racist violence, it has only recently begun collecting national data regarding use of force by law enforcement officials. footnote2_jsy2adj 2 Federal Bureau of Investigation, “National Use-of-Force Data Collection,” Criminal Justice Information Services (CJIS), https://www.fbi.gov/services/cjis/ucr/use-of-force.

Congress should direct the Justice Department to do the following:

• Immediately establish a working group to examine law enforcement associations with white supremacist and other far-right militant groups to assess the scope and nature of the problem in a report to Congress.
• Develop an evidence-based national strategy based on this review, designed to protect the security and civil liberties of communities policed by law enforcement officers who are active in white supremacist or far-right militant organizations. A national strategy will ensure U.S. attorneys and FBI offices across the country properly prioritize these investigations and harmonize their tactics to guarantee equal justice for all. The national strategy should include data and metrics to evaluate the effectiveness of the methodologies it employs.
• Require the FBI to survey its domestic terrorism investigations involving white supremacists and other overtly racist or fascist militant groups to document and report to the DOJ all indications of active links between these groups and law enforcement officials. This would both inform the department’s assessment and national strategy and, where evidence of potential civil rights violations or other criminal activities by these law enforcement officers exists, allow investigations to be initiated.
• Require the FBI to determine whether any law enforcement officials it investigates for civil rights violations or other criminal matters have connections to violent white supremacist organizations or other far-right militant groups, have a record of discriminatory behavior, or have a history of posting explicitly racist commentary in public or on social media platforms. This information should be provided to FBI agents assigned to domestic terrorism matters for investigative and intelligence purposes, and to federal, state, and local prosecutors to consider their inclusion on Brady lists.
• Require the FBI to report any federal, state, or local official assigned to a federal task force who is discovered during initial screenings or periodic background investigations to have active links to any white supremacist or other militant groups, to have engaged in racist behavior, or to have posted overtly racist commentary to on social media to the DOJ and to their departments. Where appropriate based on available evidence, the Justice Department should bar these officials from further participation with federal task forces and report the information to appropriate departmental heads and state and local prosecutors for potential inclusion on Brady lists.
• Analyze the data collected by the FBI in its law enforcement use of force database to assist in developing the national strategy. The FBI should evaluate each use of force complaint for indications that racial or ethnic bias motivated the violence. Where evidence reasonably indicates a violation of federal, state, or local laws, cases should be referred for prosecution.
• Establish a formal mitigation plan to implement when evidence indicates that an identified law enforcement officer poses a public security threat or a risk of harm to any protected class or community. Such a plan could include federal, state, or local investigations and prosecutions; civil rights lawsuits and consent decrees; reporting information identifying the officer to other federal, state, or local authorities for appropriate employment action; and placement of identified officers on Brady lists maintained by federal, state, and local prosecutors to ensure that defendants in criminal cases and plaintiffs in civil actions against these officers have appropriate impeachment evidence available.
• Establish a public hotline for reporting racist activity by law enforcement officials and strengthen whistleblower protections for federal law enforcement agents.

The Domestic Terrorism Prevention Act of 2019, a Senate bill introduced by Sen. Dick Durbin (D-IL), includes a provision that requires the FBI to assess the threat posed by white supremacist and neo-Nazi infiltration of law enforcement and the military. This assessment should be informed by data collected from FBI investigations and surveys of federal, state, and local law enforcement agencies, and from data collected for the law enforcement use of force database.

Lastly, Congress should pass the End Racial and Religious Profiling Act of 2019 to ban all federal, state, and local law enforcement agencies from profiling based on actual or perceived race, ethnicity, religion, national origin, gender, gender identity, or sexual orientation. Banning racial profiling would mark a significant step toward mitigating the potential harm caused by racist officers undetected within the ranks.