Abstract

Excerpted From: Jessica Tilton, Can Policing Be Purged of White Supremacy? A First Amendment Inquiry, 45 Mitchell Hamline Law Journal of Public Policy and Practice 179 (Spring, 2024) (216 Footnotes) (Full Document)

White supremacy and racism have no place in law enforcement. Despite white supremacy and police departments sharing the same historical origins, the Constitution of the United States has since evolved and guarantees equal protection for all under the Fourteenth Amendment. In the wake of highly publicized violence against Black people at the hands of law enforcement over the past several years, such as the murders of George Floyd and Breonna Taylor, the public is demanding more transparency and accountability within police organizations nationwide. Our Constitution and the entire criminal justice system are continuously delegitimized by allowing racist police officers on the force, therefore it is necessary to begin the difficult process of eradication of explicit white supremacy within law enforcement.

Bills are currently being introduced at both state and federal levels that either ban, dissuade, or make it more difficult for individual police departments to hire individuals with white supremacist connections. The government may prohibit the employment of known white supremacists from law enforcement jobs, not as a form of punishment for these views-- this reasoning would be in violation of the First Amendment-- but because the government decides they are simply not qualified for the job.

White supremacy refers to “an individual, group or action embodying the ideological notion of biological, genetic, intellectual or other inherent superiority of whites over other population groups.” White supremacists also include those people who believe in white superiority even if they are not officially affiliated with nor member of a specific white supremacist organization. Simply put, you don't have to be a card-carrying member to wave the flag.

Vida B. Johnson, a scholar from Georgetown Law, has argued that the disclosure of a police officer's involvement with white supremacist organizations and other hate groups should be relevant discovery information when an officer is a party or witness in litigation under the Brady Doctrine. She argues that compelling government interest exists in the public's awareness of an officer's involvement with extremist groups, and such information should be used to question the integrity of an officer's testimony with the possibility of impeachment. However, in this article I take that argument a step further and posit that not only should such information be available under the Brady Doctrine, but such involvement completely and unequivocally disqualifies a person or officer from licensure with any public law enforcement agency all together.

Law enforcement officers take an oath to protect the community. Every officer should strive for unbiased treatment of all individuals--without exception. Especially and without question when based on a superficial distinction between two people, such as the color of their skin. If a law enforcement officer or law enforcement candidate holds a fundamental belief that certain individuals are superior to others because of the color of their skin alone, that person disqualifies themselves from employment with the state because they are inherently unfit to fulfill any duty of any policing organization while remaining true to our democratic Constitution. Though not every police officer with white supremacist views or affiliations in a department will act out on those extremist beliefs, all it takes is one officer to behave in a manner that terrorizes a community, causes distrust, and who will therefore delegitimize the entire organization. Unfortunately, this cycle is history repeating itself. It has been happening since colonists landed, since slaves were freed, since the 14th amendment was passed and incarceration rates skyrocketed, since Jim Crow laws shifted to “Voter Protection” laws, and continues to happen today. Though only now do we have powerful social movements, largely fueled by protests, social media, and the news, that are bringing greater awareness to this institutionalized practice of law. And people are calling for change.

Public awareness of bias within the criminal justice system has existed for decades (if not longer), specifically the disparity with which law enforcement agents treat people of color versus those people with white or lighter skin. The discourse has ebbed and flowed between seeing this systemic inequality as something explicit and intentional versus implicit and unintentional. Implicit racism within law enforcement is well researched and beyond the scope of this paper. I will be discussing the idea of explicit racist behavior, specifically white supremacist values, operating within police departments and the First Amendment ramifications of a deliberate ban thereof.

Section II addresses why the banning of white supremacy in law enforcement is of paramount concern. White supremacist ideology undermines the core public safety function of law enforcement, because it presupposes that certain people are better and more important than others. This presupposition is irreconcilable with the requirements needed to be a police officer. The entire model of policing requires trust. This is critical to ensuring that decision making is understood and in accord with stated policy. The moment the public does not trust the police, the whole structure is disenfranchised and threatened. As a result, certain communities, often minority communities, stop reporting crime and start finding their own solutions to rectify criminal behavior. Explicit eradication of white supremacists on police forces is an essential step towards repairing the system and restoring trust in law enforcement.

Section III summarizes First Amendment case law in the context of free speech rights and public employees. I will show how under specific circumstances, constitutional jurisprudence holds that state employees may surrender certain First Amendment rights, both on and off the job. Whether the restraint is on speech, assembly, or association, the analysis is the same. When free speech-infringement claims under the First Amendment are brought by public employees, courts use the Pickering Test to determine whether the employee's speech is protected. By applying the test, the court decides whether the speech in question is a matter of public concern, and, if so, they continue the inquiry by applying a balancing test that weighs the employee's freedom of speech against the state employer's interest. This test, though it appears simple, is difficult to execute in the real world as is shown by disagreement and inconsistency among lower courts. I will briefly look at these inconsistencies and address how they can impact the Pickering analysis.

Section IV examines a bill proposed in Minnesota to ban white supremacy from law enforcement. The bill would require the Peace Officer Standards and Training (POST) Board to amend their hiring and training practices. The initial draft of the bill created a ban excluding officers and applicants holding licensure when they are members or otherwise participate in white supremacist behavior. The aim was to establish a zero-tolerance policy for white supremacists on the force and move towards repairing the distrust so embedded in the Minneapolis Police Department post-George Floyd.

Section V argues that a ban of white supremacists in law enforcement is not a violation of the First Amendment. Current and especially future bills that ban this type of expression are able to pass constitutional muster if carefully crafted by state or federal legislatures because the government has a compelling interest in creating a bright line rule that eradicates explicit racism from the ranks for law enforcement officers. Using the Pickering framework, I will analyze how the courts would likely respond to a First Amendment challenge. The government has passed bills like this before. In passing the Hatch Act of 1939, Congress limited federal employees' freedom to associate in various political activities and campaigns with the purpose of maintaining a federal workforce that is free from partisan political influence or coercion. States similarly limit their judges' freedom to associate by creating judicial codes to promote integrity in the system and impartiality in the process. Congress or state governments could further this practice through legislation that not only dissuades racism within law enforcement agencies but bans its explicit display and participation altogether.

Counterarguments exist. In Section VI, I briefly discuss counterarguments and possible solutions. A main argument is that the language in the bills and the title “white supremacist” is too vague. In reality, it is the opposite of vague. The definition of white supremacist is highly specific, it has a bipartisan and common knowledge acceptance, and therefore the scope of these new bills will be narrow. I will look at Holder v. Humanitarian Law Project as an example of the Court weighing language that is challenged by the question of vagueness, and how specific statutory language can survive challenges in the court.

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Very few issues in United States history have been as persistent and volatile as relations between black people and white people. Ultimately, banning white supremacy from law enforcement is intended to address the longstanding adversarial relationship between police and communities and to help develop police departments that work collaboratively and democratically with all of the communities they serve, increasing transparency, accountability, fairness, and public safety. Banning white supremacists from police forces may not extinguish the implicit, or even all versions of explicit, racism in law enforcement, nor would it fix the broken democracy the entire country is grappling with. However, creating a common denominator of intolerance is a step in the right direction.

Police officers hold a unique position in society in that their workplace is the community. A licensed police officer's affiliation with white supremacy groups is patently inconsistent with their duty to protect and serve every citizen with fairness and equality. When the government cannot effectively perform its duties due to an employee's speech, it has the right to dismiss or simply not hire that person because of the interest in having a functional police force. Police officers have a duty to uphold the Constitution; and white supremacy is in direct conflict with this duty. The two-prong test created by the Supreme Court, though it may not be perfect, ensures that the constitutionally guaranteed equal rights of minorities are not sacrificed by the abuse of First Amendment rights by police officers responsible for serving the public. Achieving racial equality in policing is a worthy cause, one that the country should fight for until it has succeeded.