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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 Klanaffiliated 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

1

political.” 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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Vol. 6, 2013 31
LSD Journal

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
empower

white

law

enforcement

supremacists

with

positions
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-ghostskins.html.
4
Nat’l Gang Intelligence Center, 2011 National Gang Threat
Assessment 33 (2011), available at http://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment/2011national-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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Vol. 6, 2013 32
LSD Journal

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, America’s Plague of Bad Cops, L.A.
TIMES, Sept. 17, 1995, available in http://articles.latimes.com/199509-17/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 Andrè 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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Vol. 6, 2013 33
LSD Journal

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-policeofficers-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, O UR ENEMIES IN BLUE: POLICE AND POWER IN
AMERICA, 45 (2007).
15
Id.

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LSD Journal

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 police’s 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.
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).
17

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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 Klan’s 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 AFRICANAMERICAN 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.
Kristan Williams, O UR ENEMIES IN BLUE: POLICE AND POWER IN
AMERICA, 78 (2007).
29
Id.
30
Id.
31
Id.
32
Id.
33
Id. at 79.
34
Id.
28

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LSD Journal

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/statsservices/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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LSD Journal

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, I’m 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: “Can’t do it. I don’t like
the ni[ ][ ]ers and the Mexicans don’t like me.” 42
Additionally, the “Southeast Investigation” of the
San Diego Police Department in 1976 by then38

David Cunningham, KLANSVILLE, U.S.A.: THE RISE AND FALL OF
THE CIVIL RIGHTS-ERA KU KLUX KLAN, 189 (2013).
39

Id. at 190.
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 COP’S EXPOSÉ OF THE
DARK SIDE OF AMERICAN POLICING, 100 (2005).
40

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LSD Journal

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 11-13—ni[ ][ ]er” (11-13
43

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

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LSD Journal

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

Investigation’s

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.
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/SB100014241278873244398045781150
22118616866.html.
49

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LSD Journal

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 Sheriff’s 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).
Id.
54
Officer Fired for Involvement with Ku Klux Klan, L.A. TIMES, Dec.
13, 1989, available at http://articles.latimes.com/1989-1213/news/mn-164_1_ku-klux-klan.
55
Klansman Fired in Dallas Discovered in Florida, OCALA STARBANNER, Apr. 1, 1990, at 6B, available at
http://news.google.com/newspapers?nid=1356&dat=19900401&id=5
W8xAAAAIBAJ&sjid=GwcEAAAAIBAJ&pg=4812,76168.
56
Id.
57
Id.
53

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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 Sheriff’s Department to
be a “neo-Nazi, white supremacist gang.” 59 Decades
later in 2013, two deputies filed suit against the
L.A. County Sheriff’s Department alleging the
Vikings group still exists and that an “inappropriate
relationship exists between certain LASD [Los
Angeles Sheriff’s 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=ll
keAAAAIBAJ&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/199110-12/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. Sheriff’s Dept., COURTHOUSE NEWS SERVICE, Apr. 16, 2013,
available at http://www.courthousenews.com/2013/04/26/57064.htm.

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LSD Journal

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-whitesupremacist-infiltration.html.

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Vol. 6, 2013 45
LSD Journal

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/tommetzger (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-whitesupremacist-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. Dep’t 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 he’s linked to Ku Klux
Klan, ORLANDO SENTINEL, Feb. 7, 2009, available at
http://articles.orlandosentinel.com/2009-0207/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/NGICGangInfiltration.pdf.
71
Id. at 4.
72
Id.
73
Nat’l Gang Intelligence Center, 2011 National Gang Threat
Assessment, 10 (2011), available at http://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment/2011national-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
town’s tow list, witnesses recounted the town’s
Chief of Police’s racist statements, including: “I’m
not letting that goddam ni[ ][ ]ger tow for us” and
“I’m 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 Chief’s 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.
Smith v. Wilson, 705 F.3d 674, 677 (7th Cir. 2013).
76
Id.
77
Id.
78
Id. at 682.
75

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our country’s 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.
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-whitesupremacist-infiltration.html.
80

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LSD Journal

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 Sheriff’s Race, BOISE
WEEKLY, May 17, 2012, available at
http://www.boiseweekly.com/CityDesk/archives/2012/05/17/idahoklansman-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-whitesupremacist-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-doc27-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,

demonstrations,

instructed

“Sieg-Heiling”

that,
and

during
“waving

swastika flags make[s] my job more difficult and

84

State of Nebraska v. Henderson, 762 N.W.2d 1, 11 (Neb. 2009).
Jon Ronson, THEM: ADVENTURES WITH EXTREMISTS 179 (2002).
86
Fed. Bureau of Investigation, U.S. Dep’t of Justice, Terrorism in
the United States 1996, 17, available at http://www.fbi.gov/statsservices/publications/terror_96.pdf (last visited June 3, 2013).
87
Jon Ronson, THEM: ADVENTURES WITH EXTREMISTS 179 (2002).
85

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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 MOVEMENT’S 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).
See Id.
96
Nat’l Gang Intelligence Center, 2011 National Gang Threat
Assessment, 33 (2011), available at http://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment/2011national-gang-threat-assessment-emerging-trends.
97
Id.
95

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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.
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. Dep’t of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987).
99

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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 community’s 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.
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).
105

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report crimes or offer testimony as witnesses, 110 and
(c) the police department’s 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
enforcement

supremacist
harms

infiltration

society

because

of

law
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 society’s ills, views them as
enemies, and seeks to extirpate them. 114 The
110

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

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following post on Whiterevolution.com reveals how
extreme white supremacy ideology can be:
Ni[ ][ ]ers don’t 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. Let’s 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.
Nat’l Gang Intelligence Center, 2011 National Gang Threat
Assessment 33 (2011), available at http://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment/2011national-gang-threat-assessment-emerging-trends.
117
Tim Prenzler, ETHICS AND ACCOUNTABILITY IN CRIMINAL JUSTICE:
TOWARDS A UNIVERSAL STANDARD, 29 (2009).
116

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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 FBI’s 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.
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/liedetector_tests_being_used.html.
120
Norm Stamper, BREAKING RANK: A TOP COP’S EXPOSÉ OF THE
DARK SIDE OF AMERICAN POLICING, 107 (2005).
119

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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

organizations

are
tasked

essentially

paramilitary

with

mission

the

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-whitesupremacist-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 Sheriff’s Dep’t, 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 Sheriff’s Dep’t, 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

employee’s competing interests. 133 Courts have

130

Pickering v. Board of Educ. of Township High School, 391 U.S.
563, 574 (1968) (holding that “a teacher’s 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 Sheriff’s Dep’t, 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, Garcetti’s
Impact on the First Amendment Speech Rights of Federal Employees,
7 FIRST AMEND. L. REV. 117, 117-18 (2008).
133
Pruitt v. Howard County Sheriff’s Dep’t, 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 statement’s 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 Sheriff’s Dep’t, 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 officer’s 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 Nazilike conduct because their speech did not concern
public issues. 138 Their conduct included imitating
German World-War II characters from a television
show called Hogan’s 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 test’s “public concern” threshold
requirement.140 First, regarding their speech’s
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 speech’s 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 Sheriff’s Dep’t, 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 agency’s 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.
Id. at 699.
144
Mings v. Dep’t of Justice, 813 F.2d 384, 386 (Fed. Cir. 1987).
143

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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 agent’s 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 letter’s 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
146

Id.
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 letter’s potentially
disruptive effect on agency operations outweighed
any public interest addressed in the letter. The
letter’s 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
letter’s 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 officer’s speech addresses matters of
public concern, then the analysis may proceed to the
147

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

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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 Sheriff’s Dep’t, 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, we’re 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 Locurto’s
termination.161 The court addressed the Pickering
test’s first part by assuming that participation in the
float involved speech on a matter of public

154

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

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concern.162 This answer shifted the analysis to the
Pickering test’s second part, where the government
employer had the burden to show, first, that the
employee’s 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 employee’s 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 Locurto’s 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 “offduty” 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 plaintiff’s 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 Locurto’s discharge by concerns over
potential

disruptions

to

police

department

operations.169 Finally, in weighing the competing
interests,

although

Officer

Locurto’s

First

Amendment interests were “not insubstantial,” the
165

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

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court nonetheless found that his interests were
outweighed by the City of New York’s 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 employer’s interest outweighs the
employee’s 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 Department’s
interest in performing its mission outweighed the
officer’s 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.
Pappas v. Giuliani, 290 F.3d 143, 151 (2d Cir. 2002).
172
Id. at 144.
171

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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
officer’s 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 Department’s interest in fulfilling its mission
outweighed the officer’s free speech interest
because the officer’s 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 Department’s 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.
Id. at 144.
175
Id. at 146.
176
Id. at 147.
177
Id. at 146-47.
174

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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 employer’s interest in harmonious
personnel and community relations outweighed the
employee’s 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.
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
179

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Overstreet, an African American and president of
the local NAACP, writing a newspaper column
questioning a court hearing’s 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 it’s 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 government’s 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: Government’s 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

Amendment

rights,

violated
but

the

their

First

Eaton

court

disagreed. 189 Although the detectives’ speech
involved a matter of public concern, the court held
that the city’s 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 Department’s working
relationships because other African American
officers worried about and disliked the statements.
One African American officer viewed some of
186

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

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Eaton’s statements as similar to statements by white
supremacists.192 Also, the detectives’ statements
significantly

disrupted

supervisor’s

day-to-day

the

chief

duties

and

other

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
Speech

Officers

for

Off-Duty

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

192

action

by

a

law

Id. at 965.
Id. at 966.
194
Id. 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/wpcontent/uploads/2011/03/FirstReport.PublicEmployees.pdf.
193

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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 Locurto’s termination.199
The court reasoned that the float activity potentially
disrupted police (and fire department) operations,
and City of New York’s 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 officer’s free
speech interests.200 Prior to Pickering, 201 the
Reagan court also upheld a police officer’s
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 department’s morale and caused divisions

200

Id. at 182, 183.
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.
201

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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

Department’s

interest

in

effectively

providing for the public safety outweighed the Head
of Narcotics Bureau and Officer Spetalieri’s free
speech interest. 208 He was terminated after making
racist comments during a telephone conversation
wherein he stated, “I’ll be the first one to admit that
I’m 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.
Id.
207
Spetalieri v. Kavanaugh, 36 F. Supp. 2d 92, 106 (N.D.N.Y. 1998).
208
Id.
209
Id. at 100 n.3.
206

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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 City’s prediction of police
department disruption was “reasonable.” 213 The
City could reasonably conclude that the public’s
belief that its local police officers were racially
biased

could

undermine

the

public’s

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 Spetalieri’s speech. The police
210

Id.
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.
211

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have a significant interest in regulating police
officers’s 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
College’s 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, “There’s
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.
Id.
217
Allen v. Lewis-Clark State College, 670 P.2d 854, 867 (Idaho
1983).
218
Id. at 856.
216

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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 court’s 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
Disruptions

Officers

for

Potential

In addition to considering actual disruptions,
courts also consider the police officer’s speech’s
potential disruptions. “[C]ourts give substantial
weight to an employer’s ‘reasonable predictions of
disruption.’” 222 The government employer is not
219

Id. at 857.
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).
220

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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 officer’s expressive activity was
“likely to interfere with Government operations.” 224
In Locurto, the court upheld a police
officer’s 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 attorney’s
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).
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.
224

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chief’s concern that the detectives’ racist emails
could bring the department into disrepute. 228
B. Discharged Officers
Association

and

Freedom

of

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 officer’s freedom of associationinfringement 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.
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).
229

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Vol. 6, 2013 86
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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 officer’s activities touched upon a matter of
public concern, the Department of Corrections’
interests outweighed the officer’s 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

231

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

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correctional

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Vol. 6, 2013 87
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operations.235 The Weicherding court disagreed
with the Curle majority, and, instead, found the
dissent more persuasive, approvingly quoting the
dissent’s 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
officer’s Klan membership could lead to racial
tension and incite violence; thus, the public
employer’s

interest

outweighed

the

public

employee’s 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).
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.
236

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state trooper’s 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: “I’ve 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 secretary’s 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 Hicok’s self-inflicted harms, the
court ruled that the government had good cause to
terminate Sergeant Hicok. 246 As the court stated,
“Hicok’s job performance detracted from the
department’s 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 Board’s discharge of a police officer
242

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

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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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arbitrator’s decision, but they are also willing to
vacate an arbitral decision to uphold another public
policy—that
equally.

252

public

servants

enforce

laws

In Henderson, the court held that an

arbitrator’s reinstatement of a Klan patrol officer
violated Nebraska public policy that laws be
enforced free of racial discrimination. 253 Officer
Henderson’s 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.
Id.
259
Id. at 14.
260
Id. at 14-16.
258

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

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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
arbitrator’s
improper

reinstatement
behavior

and

decision
thus violated

excused
public

policy. 268 First, the court found clear and welldefined 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 department’s Code
of Conduct. 269 Second, the court found that the
arbitrator’s 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.
Id.
268
Id. at *5.
269
Id. at *4.
267

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Vol. 6, 2013 95
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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, “I’m 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.
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).
271

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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 constable’s] use of a
highly derogatory racial slur regarding his fellow
police officers, we find astonishing the plaintiff’s
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 COP’S EXPOSÉ 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

supremacists

ideology

strategically

endures;

white

infiltrate

law

enforcement; and white supremacist officers with
badges, weapons, and authority pose great peril to
the local communities. The greatest threat to
civility,
certitude.

and
282

civilization,

is

the

surfeit

of

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 MAN’S AMERICA: THE PLEASURES AND
PROVOCATIONS OF O UR 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