Column: Does racism make you ‘too stupid to be a cop’? A California law says yes

A few weeks ago, the Contra Costa County district attorney released the results of an investigation that found up to 40% of police officers in Antioch, a Bay Area enclave with a majority of nonwhite residents, were linked to a racist text messaging chain.

Calling Black people “monkeys” and “gorillas” wasn’t the worst of it. The messages, spanning over a multiple-year period, used the N-word repeatedly and joked about targeting people based on skin color. They may end up documenting civil rights violations based on race.

Under a new state law, the California Law Enforcement Accountability Reform Act, also known as Assembly Bill 655, such hate speech may be an offense that requires termination — if substantiated.

Many police don’t know about the law, said Ed Obayashi, a lawyer and Plumas County sheriff’s deputy who advises law enforcement departments statewide on social media misconduct. And most of them, he added, don’t understand what its full implications might be.

Obayashi told me he has been trying to get his colleagues to pay attention to the CLEAR Act but hasn’t had much luck.

The scandal in Antioch may — finally — get their attention. If the city of Antioch tries to discipline its officers using the CLEAR Act, it may set a precedent for future cases and curtail our tolerance of hate behind a badge.

The CLEAR Act was written to combat extremism in law enforcement and root out officers who are members of known hate groups. But Obayashi and the bill’s author, San Jose Democrat Ash Kalra, contend that six words in the new law that prohibit “advocacy of public expressions of hate” broaden it to include much more than joining up with the Proud Boys or hanging with neo-Nazis. Obayashi believes the intent of the law, which went into effect Jan. 1, is straightforward: “Any racist bias, you are looking at mandatory terminations.”

A spokesperson for the state Department of Justice said in an email that the department is working on the specifics of the regulations. Antioch chief of police, Steven A. Ford, didn’t respond to an email about the CLEAR Act.

Racist behavior involving law enforcement remains shocking but hardly surprising. Every few months, it seems as if a new disgrace bubbles up like sewage from a broken pipe.

In August, my colleague James Queally reported on one such incident in Torrance when an officer used the N-word while texting another officer about family members who were protesting the shooting of a young Black man, Christopher Deandre Mitchell.

Over the last few years, police and sheriff’s departments, including some in San Francisco, Oakland, Berkeley, San Jose, Eureka and Sacramento, have faced similar problems.

And of course, there’s Los Angeles County, where deputy gangs in the Sheriff’s Department, with their not-so-secret tattoos (a very clear form of communication), have cost the city about $55 million in lawsuits, according to a 2020 report by the Brennan Center for Justice.

Some of those officers were fired. Some were not. Until AB 655, the rules were not explicit and allowed departments to largely impose their chosen discipline. But the CLEAR Act is definitive; if an officer has been found to be in violation, the department has no choice but to fire them.

Like, say, officers repeatedly using racial slurs while on duty patrolling a diverse neighborhood. Those Antioch text messages, even if shared on personal phones, have little expectation of privacy, Obayashi argues. And once public, they can trigger an investigation under the CLEAR Act that can examine everything that officer has said or done in public for seven years.

Obayashi teaches officers that their 1st Amendment rights don’t protect them from their obligations as peace officers. Making racist or hateful remarks in any forum — Facebook, Twitter, texts — is bad policing.

“If you do this, I don’t care if you are racist or not, you are too stupid to be a cop,” he said.

Kalra, the bill’s author, told me “the intent was certainly to root out officers that hold the kind of attitudes that officers in Antioch hold.”

The racial slurs, the misogyny, the disdain are all signs of extremism, he said. Even if the officers in the text chain aren’t explicitly in a hate group, their actions are dangerous because of the power they hold.

“It’s definitely extremist views when we consider what the role of a police officer is,” Kalra said.

And for some of the Antioch officers, it looks as though that hatred may have gone beyond words. Some of the texts refer to officers using excessive force or targeting individuals based on race. Along with a federal lawsuit by some Antioch residents targeted in the texts, another Latino couple has filed a lawsuit claiming they were attacked by officers based on their race.

Of course, the officers involved in the Antioch scandal are entitled to due process. Mike Rains, who represents both the Antioch Police Officers’ Assn. and some of the individual officers implicated in the scandal, said he doesn’t believe the CLEAR Act applies to something like a text messaging chain because it isn’t connected to a hate group or a specific hate crime.

“Even if it is abhorrent, even if it has things that sound hateful on its face about a person, about race, I don’t think that qualifies in and of itself,” he said.

He also believes that the Antioch officers who received the messages but did not actively participate in the texting chain shouldn’t be judged in the same manner as those pushing the conversation and that their silent presence shouldn’t be interpreted as agreement.

“Those officers are the ones that pay a pretty severe price simply for being on a text chain,” Rains said.

Right now, he said, most departments in California don’t have rules requiring officers to report biased or racist statements from their colleagues — which seems like something we should demand, just as we insist that officers intervene when they see excessive force.

John Burris, a civil rights attorney representing some Antioch community members in the federal lawsuit, doesn’t think passivity is exonerating.

“You get no credit for silence,” he said.

How far the CLEAR Act stretches may depend on how far police chiefs and sheriffs want it to go. If they continue to try to sweep bias under the rug, maybe the law means little. But that old-school approach has become a losing tactic both for leaders who want to keep their jobs, and for those who truly care about bringing a new and different breed of officer into the fold — which many responsible chiefs want to do.

Despite being a decades-long defender of police in courtrooms and in the public sphere, Rains says law enforcement is in trouble when it comes to hiring because of its reputation for bias and misconduct, and can’t recruit enough good people. Scandals like Antioch “drag the whole profession down.”

Case in point: The homepage for Antioch Police Department is basically a job ad, offering a $30,000 signing bonus.

Departments, especially in California, are under tremendous pressure to reform and rebuild trust with communities that are fed up with biased policing. Alison Berry Wilkinson, a lawyer who often represents officers in disciplinary hearings, said that the CLEAR Act is simply a continuation of a trend she is already seeing of departments no longer being able to tolerate bias.

Like Senate Bill 2, another reform measure that for the first time allows California to decertify officers for serious misconduct so that they can’t hold a badge anywhere in the state, it is the codification of public will.

“It’s a clear statement of what’s already going on,” she told me. “Individuals who have these beliefs, who are expressing hate in the manner of those text messages, they do not belong in this industry.”

If law enforcement leaders can use the CLEAR Act to set expectations — and maybe even clean house of an old and ugly way of thinking — then it is a law that should be used to its fullest intent.

Starting in Antioch.