The Failure to Police White Nationalism is a Feature, Not a Bug of American Policing

In the wake of the Capitol insurrection, Congressional leaders vowed to launch a comprehensive investigation into the security breakdowns that led to the breach of the Capitol. As part of this probe, Yoganana Pittman, the acting chief of the Capitol Police, testified before the House Appropriations Committee about her agency’s response to the Capitol insurrection. In what the New York Times calls one of the “fullest accounts to date,” Pittman acknowledged what many of us had suspected: law enforcement agencies tasked with protecting the Capitol were aware that armed “militia groups and white supremacists organizations would be attending” and that there was a “strong potential for violence.” Nevertheless, the Department rejected requests for additional support to protect the Capitol and lawmakers tasked with the certification of Joe Biden’s electoral college victory.  As a result this deliberate under-response, Pittman testified that the members of the Department were “no match for the tens of thousands of insurrectionists (many armed) attacking the Capitol and refusing to comply with lawful orders” and therefore “failed to meet its own high standards.”

Indeed, the “failures” described by Pittman allowed thousands of angry Trump supporters, inflamed by Donald Trump’s false claims of a “rigged” election, to easily overwhelm Capitol Police forces. With little resistance, hundreds of white people waving confederate flags, wearing MAGA hats and t-shirts with Nazi iconography, broke windows, battered doors, stole property, and assaulted police. In all, it took nearly five hours for the insurrectionists to be removed from the Capitol and for the Joint Session of Congress to resume its duties. When the smoke cleared, the insurrectionists failed to prevent the certification of Biden’s electoral college victory, but they succeeded in turning the usually staid Capitol into a crime scene. The admitted failures of the Capitol Police left five dead and confidence in American democracy shaken.

The United States Has A Long History of Police Failure to Confront White Nationalist Violence

While Pittman’s candid admission of law enforcement’s failures on Jan. 6 might have been a refreshing change from a system allergic to accountability and truth, it would be a mistake to frame the failures she described as an aberration in policing practices. Rather, the underpolicing of white racial violence and white supremacy is a foundational component of policing in the United States. Indeed, slave patrols, which used violence to suppress and control the movements of enslaved populations for the benefit of plantation-owning whites, were “one of the earliest and most prolific forms of early policing in the South.” Slave patrols relied on whites of all stripes to maintain control over enslaved people as a means to preserve “law and order” in the South and thus to maintain a fraught peace in a nation grappling with the expansion of slavery.

Following the Civil War, cities moved to professionalize their police forces. The newly created police forces, however, had a similar role to the slave patrols that preceded them: enforcement of formal and informal racial boundaries. Police, however, did not do this work alone. Instead, they relied upon or tolerated racial violence in order to maintain white supremacy as a “way of life.” In other words, white racial violence was not antithetical to policing, it was a tactic of policing.

In 1919, for example, the nation’s capital was once again under siege by an angry white mob under circumstances strikingly similar to today, as the United States was grappling with a global pandemic, economic instability and a white supremacist sympathizer in the White House. Motivated by conspiracy theories and fears that “their country” was being threatened by increased Black participation in American political and economic life, the mob attacked Black people, particularly World War I veterans, leaving death and destruction in its wake. The mob was aided and abetted by the police, who at best, stood by as carnage unfolded, and at worst, joined in the violence. Only after the White House reluctantly deployed the National Guard did the siege come to an end. When the dust settled, many were left dead and few were arrested. Perhaps emboldened in significant part by the immunity granted to the white mob in D.C., white terrorism exploded across the country, spreading to over 25 cities.

The law enforcement responses – or lack thereof – to the Capitol insurrection of 2021 and the Capitol Race Riots of 1919 are not isolated incidents. Instead, they represent a continuity in law enforcement’s symbiotic relationship with white supremacist terror. Indeed, white violence enables the United States, which historically conflated whiteness and citizenship, to maintain its racial equilibrium in the face of shifting demographic, political and economic realities without direct state intervention. White nationalist groups compliment the role that police have traditionally played in regulating Black communities from slavery to Jim Crow to the present. Of course, enforcing racist laws and systems is no longer the explicit charge of law enforcement entities, but the imprint of these origins on law enforcement strategies, culture and practice persists.

Indeed, recent events at the Capitol and elsewhere exemplify the old adage “the more things change the more they stay the same.” Police were criticized for their “failures” in the wake of the chaos and violence that occurred during the “Unite the Right” march in Charlottesville, Virginia.  Officers in Kenosha, Wisconsin thanked armed white militia members for their assistance in controlling protests of police violence. Police officers across the country showed extraordinary restraint in the face of angry white protests against pandemic lockdowns and mask mandates. White militia groups openly “patrol” the southern U.S. border, kidnapping and abusing migrants, in plain view of ICE agents.

Not only do police often protect or turn a blind eye to white nationalist groups, numerous reports have found that an alarming number of police officers are themselves members of white nationalist groups. The FBI  has identified “active links” between white supremacists and law enforcement officers. The Los Angeles Sheriff’s Department, the agency that I help to oversee, has a long-standing problem with white supremacist gangs in their ranks. The Washington Post reports that “[m]ore than a dozen off-duty law enforcement officers were allegedly part of the Jan. 6 mob and are under investigation.” The Post also found that “[a]t least a dozen Capitol Police officers are also under investigation for possibly playing a role in the rioting by assisting or encouraging the mob.” Clearly, the ties that bind the police to white nationalists remain intact.

Repression of Black-led Freedom Movements

The flip side to law enforcement’s history of collaboration and protection of white nationalist elements is its consistent use of violence to repress Black communities and Black-led freedom movements. Like the slave patrols that preceded them, modern police departments often serve a racialized “social control” function when it comes to Black communities, particularly when Black communities organize to demand justice. Instead of being treated like citizens expressing their First Amendment rights, Black protesters are perceived as threats to “law and order” and treated as such.

American history is replete with examples of police violently suppressing movements that challenge the subordinate status of Black people in America: On “Bloody Sunday,” police attacked peaceful protesters, including Martin Luther King, Jr. and John Lewis, on the Edmund Pettis Bridge for doing nothing more than demanding the right to vote. Birmingham police blasted Black children marching to end segregation with firehoses. In Oakland and elsewhere, police opened fire on the headquarters of the Black Panther Party for Self Defense. In Philadelphia, police bombed the building that housed members of a Black radical collective called MOVE. These movements did not advocate for the overthrow of the U.S. government. They did not seek to restrict liberty and justice to the few, instead pressing for “liberty and justice for all.” These movements called for the recognition of the human rights and inherent dignity of all people. And for these simple demands they were beaten, arrested and, in some cases, killed by police.

The violent policing of Black movements did not end with the assault on civil rights and Black radical movements of the 1960s. The Movement for Black Lives and protests associated with it have become the latest target for state repression. Indeed, there were no “failures” to mobilize law enforcement resources in the face of peaceful Black Lives Matter protests that took place in Washington D.C. just six months before the Capitol insurrection. In response to the protests over the police killings of George Floyd, Breonna Taylor and others, 16 law enforcement agencies were deployed to the Capitol. In a show of force, law enforcement officers dressed in riot gear, wielded batons, carried shields, and fired tear gas and rubber bullets at unarmed peaceful protesters. National Guard tanks patrolled the city, while nearly two miles of fencing and concrete barriers were erected around the White House, forming what the Washington Post called a “gigantic metal cocoon.”  Former President Trump, in contrast to his encouragement of white insurrectionists, declared himself the president of “law and order” and threatened to deploy military force to put down the protests.

Where Do We Go From Here?

In the wake of the Capitol insurrection, the Biden administration has directed federal law enforcement agencies to examine the threat posed by “domestic violent extremism” in the United States. Many commentators, however, have argued that these steps do not go far enough and instead have called for legislation to target white supremacist groups. A columnist for the New York Times recently argued that “[t]he administration should look to pass a bill similar to the now pending Transnational White Supremacist Extremism Review Act that seeks to direct the intelligence community to develop and disseminate a threat assessment on violent white-supremacist groups operating overseas, some of which may have connections to U.S.-based extremists.”

Expanding the powers of federal law enforcement under the guise of “rooting out extremism” will likely result in another failed effort to curb white nationalism. Why? Legislation targeting white extremism will rely upon the same law enforcement entities that maintain and support white supremacy. Moreover, legislation will not alter the ways in which law enforcement has been complicit in the preservation and promotion of white nationalism in the United States, including within their own ranks.

Given America’s history of racialized policing, federal initiatives targeting “domestic extremism” are likely be used to expand the surveillance and criminalization of Black and Muslim communities. Indeed, the Department of Justice under former President Trump already took steps in this direction by creating a designation for “Black Identity Extremists.” In an interview with the Daily Beast, Representative Illhan Omar similarly cautioned against new legislation targeting domestic extremism: “We should not lose sight of our disgust at the double standards employed against white protesters and Black ones, or against Muslims and non-Muslims . . . . But at the same time, we must resist the very human desire for revenge—to simply see the tools that have oppressed Black and Brown people expanded.”

This country must get to the core of the twin problems of white nationalism and discriminatory policing. In order to do so, we must reckon with the ways in which our institutions, particularly policing, are rooted in white supremacy. This country must fundamentally rethink the role that policing plays in our society in light of its historical association with white nationalism and racial exclusion by reckoning with the racialized history of policing, reducing our reliance on police, diverting funding from police to vital public programs, and ensuring accountability for law enforcement entities that engage in wrongdoing. If we do not undertake these steps, law enforcement’s history of “failure” in policing white nationalism will repeat itself, again. 

About the Author(s)

Priscilla A. Ocen

Priscilla A. Ocen (@pannocen) is a Professor of Law at Loyola Law School.