Federal lawyers seek to exclude ‘implicit bias’ video in defending agent with Nazi tattoo

Federal lawyers defending the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) over allegations of racial discrimination and retaliation made by an African-American agent who complained about a colleague with a Nazi tattoo have asked a judge to excuse potential jurors from watching a court video intended to alert them to “unconscious bias” involving race, gender and age.

Civil lawyers in the office of Seattle U.S. Attorney Brian Moran say in documents filed Thursday that showing prospective jurors the 11-minute video — intended to combat the “problems presented by unconscious bias” — would be “unduly prejudicial” in a case in which a black female agent, Cheryl Bishop, has sued the agency.

Bishop’s lawsuit, set to go to trial before U.S. District Judge Thomas Zilly next month, alleges the ATF scuttled her promotion and appointment to work at its Washington, D.C., headquarters after she complained about a white colleague with a Nazi tattoo on his upper arm. He allegedly sent messages using his ATF email account disparaging black people and former President Barack Obama.

That special agent, Bradford Devlin, is the resident agent in charge of the ATF’s Eugene, Oregon, office. He previously supervised Bishop in Seattle. He said he got the tattoo — of a German eagle with the letters SS as lightning bolts — while working undercover with a white-supremacist biker gang in Ohio in the early 2000s.

He has declined to remove it, even at ATF expense, calling it a “war trophy” in sworn statements. His supervisors have said they were “appalled” when they learned he still had it.

As the case nears trial, at issue is a court-sponsored video intended to be shown to all prospective jurors to alert them to s0-called “implicit bias” — the unconscious attribution of prejudices and stereotypes toward others that often informs everyday decisions.

It focuses on the most common and well-known prejudices — against race, gender and age — and was put together by a committee of judges and legal scholars led by senior U.S. District Judge John Coughenour. Two other prominent Seattle lawyers appear — Jeffrey Robinson, a criminal defense attorney and deputy legal director of the national American Civil Liberties Union, and former Seattle U.S. Attorney Annette Hayes, whom Moran replaced.

The government, in its motion to exclude the video, alleges that showing it to prospective jurors in this case would prejudice the government’s defense “by effectively instructing jurors that everyone (which by definition includes the defendant’s employees) holds implicit bias” — which is exactly what the video says. In his opening remarks in the video, Coughenour states, “It’s something we all have simply because we’re human.”

Some comments in the video are made over a backdrop of images of racial discrimination, such as restrooms labeled “whites only” and “colored only.”

In their motion, the ATF’s lawyers say, “That message effectively shifts to the defendant employers the burden of proof … and impermissibly requires [the ATF] to prove that its decision makers were not motivated by discriminatory animus.” 

Emily Langlie, a spokeswoman for the U.S. Attorney’s Office, said in a statement:  “In this civil case, because bias is the ultimate issue for the jury to determine, the video could be seen as unfairly directing the decision on a matter that is for the jury to decide.”

The government’s motion drew a sharp response from Bishop’s Seattle attorney, Jesse Wing, with the firm McDonald Hoague & Bayless.  “I can understand why the Government does not want the jury to see photos of the Jim Crow South in a case where a government agent with a Nazi tattoo is harassing a Black woman.

“But the very point of the video (in the words of former U.S. Attorney Annette Hayes), is to counteract the unconscious bias at issue in every case,” Wing said in an email. “This one no less than any other.”

The video, which has been shown to prospective jurors since March 2017, has been excluded from at least one other case: the fatal police shooting of Leonard Thomas in Fife by a Lakewood-led SWAT team. That case ended in a record $15.3 million verdict against Lakewood, its police chief and two officers.