Excerpted From: Jerron R. Wheeler, Defunding C.O.P.S.: Conditioning Federal Funding to State and Local Law Enforcement Agencies upon the Implementation of a Program That Screens its Current and Future Officers for White Supremacist Affiliations, 23 University of Maryland Law Journal of Race, Religion, Gender and Class 1 (Spring, 2023) (147 Footnotes) (Full Document)


JerronRWheelerFor eight minutes and forty-six seconds, Minnesota police officer Derek Chauvin, knelt on the neck of George Floyd. This sight set in motion the largest protest in the history of the United States. Amidst civil unrest and a deadly health crisis, something else emerged--wide-spread solidarity among law enforcement officers and white supremacist organizations. Not to mention the four previous years of President Trump promoting political violence across the country. One might call the invasion of the United States Capitol the culmination of all of these things.

To some, the January 6, 2021, Capitol invasion is one of the most infamous examples of white supremacy in law enforcement to date. This may come as a surprise to some, but present at the Capitol invasion were many men and women with law enforcement and military ties. Also present were a hangman's noose and an Auschwitz Concentration Camp t-shirt, both of which are symbols commonly associated with white supremacy. Unsurprisingly, far-right militant groups like the Oath Keepers and Proud Boys were closely linked to the invasion. President Biden has even stated that the Capitol invasion “was about white supremacy[.]” Even more troubling, a former reporter said, for far-right extremists, the Capitol invasion marks not the failure of an insurrection attempt, but rather, the “first shot” in a broader war.

But the attack on the Capitol should come as no surprise considering the well-documented history of white supremacy in law enforcement. The earliest examples of white supremacy in policing can be traced as far back as the slave patrols of the early 1700s. The Capitol riot is not an aberration. Instead, it is a microcosm of a much larger issue--domestic terrorism.

This Article calls upon Congress to protect its citizens where state and local legislators will not. Although Congress is limited in its ability to regulate local policing, the United States Constitution does provide authority for some congressional reform and oversight into matters of state and local law enforcement through Article 1, Section 8. Congress can (and has before) conditioned the receipt of federal funds over states' conformity to federal standards or programs. This Article proposes that the millions of dollars in federal grants sent to state and local police organizations be conditioned upon each organization's compliance with a program designed to screen current and law enforcement officials for active affiliations with white supremacist or far-right militant organizations. Such a proposal would allow for a level of specificity missing from many other “defund the police” suggestions.

Although members of Congress have already expressed interest in proposing legislation to address police reforms in response to George Floyd's death, there is currently no national strategy designed to identify law enforcement officials who are actively engaged with groups who promote and defend white supremacy, white nationalism, racial cleansing, etc. Congress has attempted police reform with the George Floyd Justice in Policing Act, but this effort faltered at the Senate steps. The legislation aimed to combat police misconduct, excessive force, and racial bias in policing. Ultimately, the parties could not agree on the fate of qualified immunity for police departments and Republicans were unwilling to agree to a national database to track police misconduct. The conversations have been quiet ever since.

II. White Supremacy in Policing

White supremacy and racism in American law enforcement have a long and ugly history. Policing in the early American South was built on the belief that the white race is inherently superior to other races and white people should have control over people of color, particularly Black people. Early evidence of this type of control can be seen in 1704 when the Colony of Carolina created the first public police organization known as the slave patrols. The slave patrols were comprised of white men hired by wealthy, white landowners to prevent Black slaves from rebelling or running away. This practice was eventually backed by Congress's passing of the Fugitive Slave Act in 1850, which required law enforcement officials in “free” states to return escaped slaves to their enslavers in the South. Slave patrols lasted over 150 years, ending with the abolition of slavery following the Civil War.

In the post-Civil War era, vigilante groups like the Ku Klux Klan (KKK) and the Knights of the White Camellia replaced the former slave patrols in maintaining a racial hierarchy. Enraged with the South's defeat in the Civil War, their purpose was to terrorize the Black community through violence in the form of thousands of beatings, lynchings, and incidents of torture and mutilation. These atrocities were inflicted with impunity because many law enforcement officers were either fellow Klansmen, loyal sympathizers, or at the very least, complicit via inaction. Arthur Raper, an American sociologist, estimated from his study of one hundred lynchings, that “at least one-half of the lynchings are carried out with police officers participating, and that in nine tenths of the others the officers either condone or wink at the mob action.”

During the era of “Jim Crow”, police enforced segregation and participated in extrajudicial violence. In the infamous “Mississippi Burning” case of 1964, three civil rights workers, James Chaney, Andrew Goodman, and Michael Schwerner, went missing after being jailed for a speeding fine. While searching for the three men, FBI agents found the remains of eight Black men. Six weeks later, investigators found the three civil rights workers' remains in a dam. Local law enforcement refused to investigate. Eventually, the Justice Department took over and a federal grand jury indicted eighteen members of the KKK with conspiracy with the objective “to injure, oppress, threaten, or intimidate[.]” Unsurprisingly, among those charged, were three law enforcement officials. Seven of the Klansmen were convicted, including one of the officers.

In 1985, the Ku Klux Klan firebombed a Black family's home in Kentucky. The following investigation exposed a Jefferson County police officer as the Klan member responsible for the firebomb attack. The officer admitted that he possessed a forty-member list of the Klan subgroup called the Confederate Officers Patriot Squad, half of whom were police officers. The officer asserted that the police department knew of and accepted his affiliation with the Klan.

In recent years, connections between white supremacist groups and police officers have persisted primarily in three ways: (1) officers join and retain active membership of white supremacist or white nationalist organizations; (2) officers engage in overt displays of racism; and (3) officers show deferential treatment toward known white supremacists.

According to a classified FBI Counterterrorism Policy Guide from 2015, the FBI warned that the white supremacist and anti-government militia groups they investigate often have “active links” to law enforcement officials. Police links to militias and white supremacist groups have been uncovered in several states including Alabama, California, Connecticut, Florida, Illinois, Louisiana, Michigan, Nebraska, Oklahoma, Oregon, Texas, Virginia, Washington, and West Virginia. A 2006 FBI memo revealed Neo-Nazi organizations and the Ku Klux Klan have historically engaged in strategic efforts to “infiltrate” and “recruit” from law enforcement communities. The report warned that skinhead groups were actively encouraging their members to become “ghost skins” within law enforcement agencies. Notably, and consistent with the FBI's reports, more than eighty defendants charged in the Capitol invasion have ties “to law enforcement and the military.”

White supremacist groups are not just morally reprehensible but also very dangerous. In 2017, the FBI identified that white supremacists are the “most lethal domestic terror threat” in the country. These groups include the Oath Keepers and the Proud Boys--the groups being charged for the Capitol attack. Alarmingly, “white supremacists have committed far more attacks and killed more people in the [United States] over the last 10 years than any foreign terrorist movement.”

While many officers may not be registered members of these organizations, it is not uncommon to see officers who share similar racist ideals. In 2019, Professor Vida B. Johnson, an associate professor at Georgetown Law, noted that more than one hundred police departments in forty-nine states have faced scandals over racist texts, e-mails, or public social-media posts by officers since 2009. Similarly, an investigation published in 2019 by the Center for Investigative Reporting found that hundreds of active-duty and retired law enforcement officers are members of Confederate sympathizing, anti-Islam, or anti-government militia groups on Facebook such as “White Lives Matter”, “Death to Islam Undercover”, “Veterans Against Islamic Filth”, and “Purge Worldwide.”

In recent history, there are several incidents where police officers have been seen sympathizing or fraternizing with known white supremacists. For example, it is well-documented that during the Capitol invasion, police officers were taking selfies, opening up gates, and offering water to white supremacist invaders. This occurred during and after the mob destroyed House Speaker Nancy Pelosi's office, smeared human feces down a hallway, and most troublingly, after a Capitol officer's life was taken.

Another recent, well-known example of law enforcement fraternizing with white militia occurred during the protests following the police shooting of Jacob Blake in Kenosha, Wisconsin. Law enforcement officers were seen on video handing water bottles to a group of armed civilians shortly before Jacob Blake was killed. The officers then thanked the men for their help and said “[w]e appreciate you guys, we really do.” This encounter was captured fifteen minutes before Rittenhouse killed two unarmed people. Even after the shooting, the police walked right by Rittenhouse, despite bystanders telling the officers that Rittenhouse had just shot two people. The police officers' actions in Kenosha were eerily similar to those of the officers in South Carolina who bought Dylann Roof food from Burger King just after he killed nine Black members of a local church. There are countless other examples.

It is safe to say “[t]he government's response to known connections of law officers to violent racist and militant groups has been strikingly insufficient.” Few police departments have explicit policies against affiliating with white supremacist organizations. These departments do not often take action until an officer's affiliations, beliefs, or actions boil over and cause an adverse public reaction. Short of a public crisis, federal, state, and local governments are doing far too little, and in some cases, nothing at all to proactively identify and eliminate racist affiliations among its officers, in light of numerous reports from the FBI highlighting this issue.

[. . .]

There is a current debate over whether defunding the police will work or not. Experts and many advocates of defunding the police believe this is a viable way to reduce violence against people of color. Diverting funds away from police to mental health experts and community programs would allow other experts to substitute police in areas they aren't well-trained in. Diverting funds to schools, health care, and other vital programs will strengthen our communities. Conversely, many believe defunding the police will only exacerbate problems. That is, defunding the police could result in the cutting of community interaction programs instead of tanks and guns. Some worry that police budget cuts will start with funding to “community interaction programs that require humanity and commitment, not guns, tanks or pepper spray.” Police agencies may resort to other means of fundraising, such as increased citation issuance. All in all, defunding the police would not come without great challenges.

Despite these challenges, one thing remains very clear--white supremacy is deadly. According to the FBI, white supremacists are the “most lethal domestic terror threat” in the country. In the words of the nation's first Black Secretary of Defense, Lloyd Austin, America must “pledge[] to ‘rid [its] ranks of racists and extremists[.]”’ So far, America's response to known connections between law enforcement officers and racist groups has been “strikingly insufficient[.]” Law enforcement officers associating with white supremacist groups should be of utmost concern to American citizens. The FBI has previously warned of “active links” between law enforcement and white supremacist militia groups. Officers who hold extremist beliefs regarding race, religion, and sexuality put the lives and liberty of people of color, religious minorities, and LGBTQ+ people at risk for violence.

There is a long history of mistrust between Black citizens and law enforcement in the United States. Biased policing has taken many lives, particularly Black ones. Allowing white supremacists to serve as law enforcement officers signals that their ideals are authorized by the government. Few police agencies have explicit policies against affiliating with White supremacist groups. Federal, state, and local governments must develop a national strategy to proactively identify racist affiliations and ensure citizens can trust the men and women in uniform to keep them safe.

While the problem itself is clear, the best way to solve it is murky. Michael German states that “law enforcement agencies must do more to strengthen their anti-discrimination policies, improve applicant and employee screening, establish reporting mechanisms, and protect and reward officers who report their colleagues' racist misconduct.” Professor Johnson says that racist affiliations, memberships, and beliefs are not just that. They manifest as bias in arrests, and in the fabrication of evidence, and often bring about deadly force. As emphasized by Professor Johnson, “[i]dentifying and removing these officers who hold such beliefs could be instrumental in reducing police harassment and violence inflicted on civilians. Ridding police departments of racist officers w[ill] also improve the relationship between the police and the communities they serve.”

The most effective way for law enforcement agencies to restore public trust is to disassociate from individuals with ties to white supremacist organizations. Law enforcement agencies must also dissociate from individuals who have a history of racist conduct. While there remains an ongoing debate on whether defunding the police is an effective strategy, for the American policing system to rid itself of white supremacy, the conversation must shift from modest proposals like anti-bias training and move toward more sweeping changes like financial carrots and sticks.

The program proposed in this Article offers a large-scale, yet practical solution in hopes of achieving institutional reform that would reduce white supremacy in policing. While the carrot and stick approach is not a new or novel concept, it can be effective. To ensure maximum participation, both a carrot and a stick may be necessary. No matter how America decides to solve this problem, it must be done. It may not survive another January 6, 2021.

Jerron Wheeler is an Associate Attorney at Foley & Lardner LLP.