Racial disparities have long pervaded every step of the criminal justice process, from police stops, searches, arrests, shootings and other uses of force to charging decisions, wrongful convictions, and sentences. footnote1_mb8bnsp1 As a result, many have concluded that a structural or institutional bias against people of color, shaped by long-standing racial, economic, and social inequities, infects the criminal justice system. footnote2_l3g2okm2 These systemic inequities can also instill implicit biases — unconscious prejudices that favor in-groups and stigmatize out-groups — among individual law enforcement officials, influencing their day-to-day actions while interacting with the public.

Police reforms, often imposed after incidents of racist misconduct or brutality, have focused on addressing these unconscious manifestations of bias. The U.S. Department of Justice (DOJ), for example, has required implicit bias training as part of consent decrees it imposes to root out discriminatory practices in law enforcement agencies. Such training measures are designed to help law enforcement officers recognize these unconscious biases in order to reduce their influence on police behavior.

These reforms, while well-intentioned, leave unaddressed an especially harmful form of bias, which remains entrenched within law enforcement: explicit racism. Explicit racism in law enforcement takes many forms, from membership or affiliation with violent white supremacist or far-right militant groups, to engaging in racially discriminatory behavior toward the public or law enforcement colleagues, to making racist remarks and sharing them on social media. While it is widely acknowledged that racist officers subsist within police departments around the country, federal, state, and local governments are doing far too little to proactively identify them, report their behavior to prosecutors who might unwittingly rely on their testimony in criminal cases, or protect the diverse communities they are sworn to serve.

Efforts to address systemic and implicit biases in law enforcement are unlikely to be effective in reducing the racial disparities in the criminal justice system as long as explicit racism in law enforcement continues to endure. There is ample evidence to demonstrate that it does.

In 2017, the FBI reported that white supremacists posed a “persistent threat of lethal violence” that has produced more fatalities than any other category of domestic terrorists since 2000. footnote3_suxgm283 Alarmingly, internal FBI policy documents have also warned agents assigned to domestic terrorism cases that the white supremacist and anti-government militia groups they investigate often have “active links” to law enforcement officials. footnote4_q14j5hi4

The harms that armed law enforcement officers affiliated with violent white supremacist and anti-government militia groups can inflict on American society could hardly be overstated. Yet despite the FBI’s acknowledgement of the links between law enforcement and these suspected terrorist groups, the Justice Department has no national strategy designed to identify white supremacist police officers or to protect the safety and civil rights of the communities they patrol.

Obviously, only a tiny percentage of law enforcement officials are likely to be active members of white supremacist groups. But one doesn’t need access to secretive intelligence gathered in FBI terrorism investigations to find evidence of overt and explicit racism within law enforcement. Since 2000, law enforcement officials with alleged connections to white supremacist groups or far-right militant activities have been exposed in Alabama, California, Connecticut, Florida, Illinois, Louisiana, Michigan, Nebraska, Oklahoma, Oregon, Texas, Virginia, Washington, West Virginia, and elsewhere. footnote5_q3ec2tx5 Research organizations have uncovered hundreds of federal, state, and local law enforcement officials participating in racist, nativist, and sexist social media activity, which demonstrates that overt bias is far too common. footnote6_64bqzdf6 These officers’ racist activities are often known within their departments, but only result in disciplinary action or termination if they trigger public scandals.

Few law enforcement agencies have policies that specifically prohibit affiliating with white supremacist groups. Instead, these officers typically face discipline, if at all, for more generally defined prohibitions against conduct detrimental to the department or for violations of anti-discrimination regulations or social media policies. Firings often lead to prolonged litigation, with dismissed officers claiming violations of their First Amendment speech and association rights. Most courts have upheld dismissals of police officers who have affiliated with racist or militant groups, following Supreme Court decisions limiting free speech rights for public employees to matters of public concern. footnote7_j2etzpr7 Courts have given law enforcement agencies even greater latitude to restrict speech and association, citing their “heightened need for order, loyalty, morale and harmony.” footnote8_mpridj38

Some officers who have associated with militant groups or engaged in racist behavior have not been fired, however, or have had their dismissals overturned by courts or in arbitration. Such due process is required to ensure integrity and equity in the disciplinary process and protect falsely accused police officers from unjust punishments. Certainly, there will be cases where an officer’s behavior can be corrected with remedial measures short of termination. But leaving officers tainted by racist behavior in a job with immense discretion to take a person’s life and liberty requires a detailed supervision plan to mitigate the potential threats they pose to the communities they police, implemented with sufficient transparency to restore public trust.

Progress in removing explicit racism from law enforcement has clearly been made since the civil rights era, when Ku Klux Klan–affiliated officers were far too common. But, as Georgetown University law professor Vida B. Johnson argues, “The system can never achieve its purported goal of fairness while white supremacists continue to hide within police departments.” footnote9_t9qe0b89 Trust in the police remains low among people of color, who are often victims of police violence and abuse and are disproportionately underserved as victims of crime. footnote10_fpffbl710 The failure of law enforcement to adequately respond to racist violence and hate crimes or properly police white supremacist riots in cities across the United States over the last several years has left many Americans concerned that bias in law enforcement is pervasive. footnote11_9p1k8nt11 This report examines the law enforcement response to racist behavior, white supremacy, and far-right militancy within the ranks and recommends policy solutions to inform a more effective response.

The FBI’s 2015 Counterterrorism Policy Directive and Policy Guide warns that “domestic terrorism investigations focused on militia extremists, white supremacist extremists, and sovereign citizen extremists often have identified active links to law enforcement officers.” footnote1_z0rwse412 This alarming declaration followed a 2006 intelligence assessment, based on FBI investigations and open sources, that warned of “white supremacist infiltration of law enforcement . . . by organized groups and by self-initiated infiltration by law enforcement personnel sympathetic to white supremacist causes.” footnote2_eexppzq13 Active links between law enforcement officials and the subjects of any terrorism investigation should raise alarms within our national security establishment, but the federal government has not responded accordingly.

The FBI and the Department of Homeland Security (DHS) have identified white supremacists as the most lethal domestic terrorist threat to the United States. footnote3_kzw6gha14 In recent years, white supremacists have executed deadly rampages in Charleston, South Carolina, Pittsburgh, Pennsylvania, and El Paso, Texas. footnote4_pmueq1915 Narrowly thwarted attempts by neo-Nazis to manufacture radiological “dirty” bombs in Maine in 2009 and Florida in 2017 show their dangerous capability and intent to unleash mass destruction. footnote5_x20ufq416 These groups also pose a lethal threat to law enforcement, as evidenced by recent attacks against Federal Protective Service officers and sheriff’s deputies in California by far-right militants intent on starting the “Boogaloo” — a euphemism for a new civil war — which killed two and injured several others. footnote6_onxj2h817

Any law enforcement officers associating with these groups should be treated as a matter of urgent concern. Operating under color of law, such officers put the lives and liberty of people of color, religious minorities, LGBTQ+ people, and anti-racist activists at extreme risk, both through the violence they can mete out directly and by their failure to properly respond when these communities are victimized by other racist violent crime. Biased policing also tears at the fabric of American society by undermining public trust in equal justice and the rule of law.

The FBI’s 2006 assessment, however, takes a narrower view. It claims that “the primary threat” posed by the infiltration or recruitment of police officers into white supremacist or other far-right militant groups “arises from the areas of intelligence collection and exploitation, which can lead to investigative breaches and can jeopardize the safety of law enforcement sources or personnel.” footnote7_2a40bp018 Though the FBI redacted significant passages of the assessment before releasing it to the public, the document does not appear to address any of the potential harms these bigoted officers pose to communities of color they police or to society at large. Rather, it identifies the main problem as a risk to the integrity of FBI investigations and the security of its agents and informants.

In a June 2019 hearing before the House Committee on Oversight and Reform, Rep. William Lacy Clay (D-MO) asked Michael McGarrity, the FBI’s assistant director for counterterrorism, whether the bureau remained concerned about white supremacist infiltration of law enforcement since the publication of the 2006 assessment. McGarrity indicated he had not read the 2006 assessment. footnote8_tqmi8ai19

When asked more generally about the issue, McGarrity said he would be “suspect” of white supremacist police officers, but that their ideology was a First Amendment–protected right. The 2006 assessment addresses this concern, however, correctly summarizing Supreme Court precedent on the issue: “Although the First Amendment’s freedom of association provision protects an individual’s right to join white supremacist groups for the purposes of lawful activity, the government can limit the employment opportunities of group members who hold sensitive public sector jobs, including jobs within law enforcement, when their memberships would interfere with their duties.” footnote9_wi106md20

More importantly, the FBI’s 2015 counterterrorism policy, which McGarrity was responsible for implementing, indicates not just that members of law enforcement might hold white supremacist views, but that FBI domestic terrorism investigations have often identified “active links” between the subjects of these investigations and law enforcement officials. Its proposed remedy is stunningly inadequate, however. The guide simply instructs agents to use the “silent hit” feature of the Terrorist Screening Center watchlist so that police officers searching for themselves or their white supremacist associates could not ascertain whether they were under FBI scrutiny.

While it is important to protect the integrity of FBI terrorism investigations and the safety of law enforcement personnel, Congress has also tasked the FBI with protecting the civil rights of American communities often targeted with discriminatory stops, searches, arrests, and brutality at the hands of police officers. The issue in these cases isn’t ideology but law enforcement connections to subjects of active terrorism investigations. It is unlikely that the FBI would be similarly hesitant to act if it received information that U.S. law enforcement officials were actively linked to terrorist groups like al-Qaeda or ISIS, or to criminal organizations like street gangs or the Mafia. Yet many of the white supremacist groups investigated by the FBI have longer and more violent histories than these other organizations. The federal response to known connections of law enforcement officers to white supremacist and far-right militant groups has been strikingly insufficient.