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Excerpted from: Vida B. Johnson, KKK in the PD: White Supremacist Police and What to Do About It, 23 Lewis & Clark Law Review 205 (2019) (232 Footnotes) (Full Document)


VidaJohnsonFor years many have argued that our criminal justice system is biased against people of color. While now there seems to be agreement among most that the system has been disproportionately applied against communities of color, recently the only question has been whether this has happened by design or unwittingly by mostly good institutional actors. At the same time that this conversation has taken place amongst academics, over the last several years there has been an alarming rise in hate groups and hate crimes in the United States. For many years scholars and law enforcement have been sounding the alarm about far-right extremism in this country. Particularly since the 2008 election of Barack Obama as president, the hate crime and hate group numbers have skyrocketed. The election of Donald Trump in 2016 has seen numbers rise even further.

Appalling incidents of violence like those in Charlottesville, where a young woman was killed and 19 others were injured in 2017, the horrifying mass shooting in Charleston, South Carolina at a landmark black church that killed nine and wounded others in 2015, the attack that killed two men in Portland who saved a young Muslim woman on a train in 2017, and the murder by a white supremacist of a black man in New York City in 2017 have gripped the nation. When vulnerable minority groups feel threatened one would imagine there would be a desire to seek protection from law enforcement and their government.

Unfortunately, this significant rise in hate group membership and hate ideology is seen not just in the public but within law enforcement as well. Newer white supremacist organizations have focused on veterans, college students and infiltrating police departments. Communities of color feel they cannot seek safety by calling police. Many in communities of color already are afraid of police because of the killings of unarmed blacks and other minorities that have been making headlines for decades but particularly since the killings in Ferguson, Staten Island, Cincinnati and elsewhere. Some see racism as the cause of this violence against people of color at the hands of police. For the most part, local law enforcement has allowed the killing of unarmed blacks to go on with few officers being prosecuted for these murders. The few that are prosecuted are almost always acquitted. With a weak civil rights division of the Department of Justice under President Trump, communities of color are unlikely to see any federal prosecution of law enforcement for unarmed shootings of black citizens, much less hate crimes.

Chillingly, since 2009 there have been a number of instances of police officers being identified as members of white supremacist groups in Florida, Alabama, and Louisiana. In that same period, there have been scandals in over a 100 different police departments, in 49 different states where individuals have sent overtly racist emails, texts, or made racist comments via social media. In some cases these disturbing comments have been made to other officers; in other instances comments have been made on public social media platforms. This appears to be a nation-wide problem. This problem is not limited just to beat officers, some of these shocking occurrences have even involved high-ranking members of their respective police forces.

Some of these biases held by police officers are longstanding ones which existed before the individual became an officer. In many instances, the officer attempts to hold these biases secret so departments may not know when an officer may hold racist beliefs. Civilians, as well as law enforcement, may not comprehend the scope of the problem. In some circumstances police officers harboring racist ideologies purposefully set out to influence other white officers that do not hold these views. Some officers may become recruited into hate groups while in the department by their fellow officers. Other officers may simply become so immersed in the culture of the police department that they may not even know that the views being expressed are ones based on white supremacy. In any event, people who hold white supremacist belief systems have no place being entrusted to enforce our nation's laws.

Although the F.B.I. warned of white supremacist infiltrating police department in 2006, the denial of the problem by local police brass has only enabled it to continue seemingly unabated. It seems that few departments are acknowledging the matter or taking any serious steps to curb this frightening problem. When an officer is identified as holding racist beliefs, police departments often claim that he or she was a “lone-wolf” and downplay any possibility that these beliefs are held by others in the department. This false narrative that we live in a color-blind world and there is no racialbias in police department persists. Because of this storyline that these biases do not exist in departments, few steps are taken to curb these biases or identify officers who carry them.

While there have been some successes in criminal justice reform, the existence of white supremacists in police departments hampers that success. The system can never achieve its purported goal of fairness while white supremacists continue to hide within police departments. Of course, people of color experience racism by police officers, both implicit and explicit. These incidents of racial animus sometimes make the headlines. With news stories about police racism continuing consistently the general public, and particularly people of color, are less likely to see racism at the hands of the police and criminal justice system as unconscious and more likely to view it as purposeful. These legitimate fears further diminish the criminal justice system in the eyes of the people to whom it is most harsh.

The lack of feelings of safety and security in communities of color coupled with the rise of tensions with police have created a dispiriting relationship between police and the communities they are sworn to serve. White people are overrepresented on police forces in most major cities. This exacerbates the problem as people of color do not see themselves reflected in their local police departments. Public opinion of police is low with a third of Americans not having a favorable opinion of police--the number is even lower when limited to African Americans with 60% having an unfavorable view of law enforcement. This tension threatens the reputation of the criminal justice system, the physical safety of certain communities and the very fabric of our country. Without swift action by state and federal law enforcement things will only get worse. The problem cannot be overstated. So far, however, this problem has not attracted many solutions.

One tool that could be employed to aid criminal defendants as well as the entire criminal justice system is to use the Brady doctrine to seek out information about police officers and disclose to the defense that a particular officer holds these biases. The Supreme Court has long held that the government must disclose any information that is favorable to the defense. There is certainly no doubt that membership in a hate group or ascribing to racist beliefs would be fodder for cross-examination of an officer and useful to the defense. The 1990s O.J. Simpson doublemurder trial is an example of how jurors can be so turned off by an officer's racism that they question the officer's veracity and role in the investigation. In that case, the officer's “racist past became a focal point” in the trial.

The Supreme Court has established that the government cannot avoid knowing information that is favorable to the defense. And police departments are considered the government for Brady purposes. The Supreme Court has never ruled on the issue of whether membership by a government witness in a hate group would be Brady but has approved cross-examination on the topic to show bias. Some courts have already found that evidence of racial animus should be disclosed to the defense by the government. By taking Brady seriously and searching for racist police officers, indigent criminal defendants will get fairer trials, the public will be informed of problem officers through public trials, and police and prosecutors get the opportunity to identify problematic police officers and take action to rid the force of these officers.

This Article will make two main points. One is that explicit racial bias, not just unconscious bias, is a serious problem within police departments. This Article will add to the discussion about racism in the criminal justice system by showing that conscious racism exists in many police departments. Officers who have such beliefs are easier than ever to identify as a result of social media, text messages, emails and internet presence. The other main point is to suggest using the Brady doctrine as a tool for those who are serious about combatting racism in the criminal justice system.

Section I will illustrate the fact that there are many officers who are members of hate groups or hold racist philosophies. These beliefs harm any individual person accused by the officer of a crime. In addition, they may infect other officers on the force. And ultimately, when discovered they can harm the community by increasing racial tensions and undermining confidence in the already beleaguered criminal justice system. The breadth of the problem will constitute the second and third sections of this piece.

Section IV will examine the consequences of allowing the problem to continue without being sufficiently addressed.

Section V will suggest the use of Brady as a way to ferret out the police with unacceptable extremist views on race. By conforming to the Due Process obligations of Brady, police departments and prosecutors must seek out this information not just in hiring, but throughout an officer's tenure in the force and before preparing for each case. The Article will also set forth tools outside of the Brady doctrine to tackle the problem of racist police.

[. . .]

Prosecutors in New Jersey had a role in the firing of the chief there who emailed his fellow officers and told them to racially profile black people in white neighborhoods. They informed the town council that the chief's statement violated the constitution and the police profiling statute in that state. Prosecutors in San Francisco turned over evidence of racialbias to the defense. Prosecutors elsewhere can take a more active role in the quality of the officers they work with. The Brady doctrine is the legal mechanism through which prosecutors can help rid police departments of their most racist members. Providing the defense with information about which officers hold these views will mean that police officers are exposed in open public courtrooms. This in turn will mean that those officers will either be removed from the force or unable to be witnesses for the government in criminal trials, which will at least mean that their ability to advance in their jobs will come to a halt.

If prosecutors use Brady's mandate of turning over all favorable information to the accused, police departments would be motivated to make sure that they did not hire officers who hold consciously racist beliefs. White supremacists would be unable to find jobs in police departments and those already installed in departments would be terminated.

Prosecutors have generally done a poor job of complying with their Brady obligations as it remains the top reason for appellate reversals, and failure to comply with Brady is one of the top reasons for wrongful convictions. Expanding or extending the police and prosecutors' job into looking for racism in their ranks then seems difficult. Social media, texts messages, and other electronic means of communication have made this search much easier.

But with or without the use of Brady as a tool by prosecutors, police departments and local governments should begin to test prospective applicants and surveil their social media and internet presence. And just as important, current officers' emails and texts need to be monitored for racist content in addition to their social media accounts and other online identities.

Good prosecutors want to be seen as legitimately pursuing public safety goals rather than pursuing a racist agenda set by extremist police. Racist police hurt the cases that prosecutors look to them to help bring. Prosecutors and police should be active in identifying and ending the careers of those who hold racist views. Prosecutors are slightly more divorced from the officers they work with than members of the force that may rely on their fellow officers for safety in the streets.

Only with good institutional partners like prosecutors and progressive police chiefs can we rid police departments of police officers with racial prejudice. The Brady doctrine is one tool that can be used to accomplish this necessary and important goal.

Professor from Practice, Georgetown Law.