Abstract

Excerpted From: Hope Elizabeth Barnes, Removing White Hoods from the Blue Line: A Legislative Solution to White Supremacy in Law Enforcement, 29 Washington and Lee Journal of Civil Rights and Social Justice 233 (Spring, 2023) (262 Footnotes) (Full Document)

For thirty-four years, Frank Nucera, Jr. served the Bordentown Township community as a law enforcement officer. He swore an oath to “never betray [his] integrity, [his] character, or the public trust” and to “always maintain the highest ethical standards.” He was given a badge of authority and eventually promoted to the position of Police Chief. Unfortunately, Frank Nucera, Jr. was an unabashed racist who “frequently referred [to Black people] as 'niggers,”’ “use[d] police dogs to intimidate [Black people],” and stated that he was “gonna get to the point where [he] could shoot [a Black person].” Nucera was charged with committing a hate crime and depriving an individual of rights after an incident in which he slammed a Black teenager's head into a metal doorjamb before referring to said teenager as a “[f]ucking little, fucking nigger,” a comment which was caught on an audio recording. A fellow officer began taping Nucera's racist comments in 2015, a year before the aforementioned incident, and those recordings led the FBI to open an investigation. Unfortunately, despite overwhelming evidence of Nucera's antagonistic views against Black individuals, juries were unable to reach a unanimous decision and the charges were dropped. While it is alarming to learn that a United States police chief in 2016 was openly spewing racist and derogatory statements, it is equally, if not more, alarming to know that he does not stand alone.

That members of law enforcement support, and are affiliated with, extremist groups and hate speech is not a new phenomenon. Organizations such as The Plain View Project, Reveal News, and the Anti-Defamation League Center on Extremism have stepped in to monitor law enforcement officers and compile data to show the ties between extremism, hate groups, and American policing. In fact, one study by the Plain View Project reviewed about 3,500 officer social media accounts and found that 20% of current officers had made posts or comments which were biased, violent, dehumanizing, or mocked due process rights. Since at least 2006, the FBI Counterterrorism Division has studied and gathered information relating to white supremacist infiltration of law enforcement agencies. Recently, researchers were able to identify nearly 400 law enforcement officials whose Facebook profiles were associated with hate groups.

Although law enforcement agencies are aware of these fundamental issues, they do not take effective action against these officers after information is uncovered. In the few instances where termination, suspension, or other disciplinary action is taken, officers are often able to remain in their positions or they are re-hired by other law enforcement agencies. The foundation of this problem lies in the history of American policing because a system built on white supremacy will continue to uphold those same values.

In recent years, federal legislators have shown interest in tracking and removing white supremacist ties to law enforcement. For example, the recently introduced White Supremacy in Law Enforcement Information Act instructs the Attorney General, in collaboration with the FBI Director, to create intelligence assessments with information regarding white supremacist connections with law enforcement dating back to 2006. Additionally, the House Subcommittee on Civil Rights and Civil Liberties held a hearing specifically to discuss the dangers of white supremacy and law enforcement.

After Derek Chauvin murdered George Floyd, general police reform efforts began to gain traction. Many of these endeavors have occurred at the local, state, and federal levels, and various officials have proposed legislation in the hopes of broadly improving policing, but bipartisan support has been difficult to secure. One such example is the George Floyd Justice in Policing Act of 2021 (“Justice in Policing Act”), a piece of federal legislation that was originally introduced in 2020, exactly two weeks after the murder of George Floyd, and aims to improve law enforcement accountability, transparency, and training.

All of these proposals are alike in that they strive to improve policing and its effects on communities. These proposals, however, are only focused on eliminating white supremacy throughout police departments as a whole, but correcting individual officer behavior is equally as important. As the saying goes, “one bad apple spoils the whole barrel.” This Note proposes amending the Justice in Police Act to include a heightened conduct and speech standard for law enforcement officers. This Note also contemplates other methods for enforcing a heightened standard, such as changes to accreditation standards. A federal policy would provide a uniform strategy that is much needed in order to address the permeation of hate speech and hate organizations into law enforcement agencies around the country.

Part II details the history of American policing from the country's beginnings through the recent past. It also examines why current policies, which are often jurisdictionally or departmentally specific and allow agencies to investigate and discipline their own officers, are inadequate to address such a pressing issue. Part III reviews The Hatch Act and the Codes of Conduct for Judicial Employees and for United States Judges, both of which govern other actors within the criminal justice system. This section discusses these policies and their processes for removing unfit individuals from positions of authority after their bias and ability to exercise proper discretion has been placed into question. Part IV proposes a heightened standard, similar to those applicable to federal officers and judicial employees, and the means for bringing state and local law enforcement employees into conformity with said standard. State and federal legislatures can enforce these standards via an accreditation process, the federal Spending Clause, and even through congressional authority under the Thirteenth Amendment. Part IV also addresses a potential administrative solution that individual departments could implement immediately as well as some of the possible concerns regarding the effect of the proposed legislation on unions and sheriffs in policing. This Note concludes that higher speech and association standards are crucial in order to begin removing white supremacy from law enforcement agencies.

[. . .]

Law enforcement employees in the United States have enjoyed abundant discretionary power despite the profession's racist foundation in white supremacist ideals. White supremacy in policing has proven to have harmful effects on individuals and communities. While a heightened speech, conduct, and association standard for law enforcement officers would create an appearance of impartiality by officers and agencies. The appearance of impartiality is imperative in the judicial system, as we cannot trust judges to be impartial if they do not at minimum appear impartial. The same is true for law enforcement employees. The duties and decisions of officers are too important for their speech to be left unchecked. A federal legislative solution is needed to establish uniformity and provide an enforcement mechanism so officers can be held accountable for disparaging conduct and speech. Law enforcement employees should never act in a way “that would put into question the propriety of [their] conduct in carrying out [their] duties.” When law enforcement employees harbor bias and align themselves with white supremacy, they can no longer be trusted to carry out their duties. Identifying and removing employees harboring bias toward people of color and marginalized communities is one step in the larger fight to reform American policing. The prevalence of white supremacy in law enforcement is vast and a bold proposal is necessary to keep our communities safe.

J.D. Candidate, May 2023, W & L University School of Law.