Amendments to the criminal civil rights law could provide the federal government with a powerful tool to pursue law enforcement accountability.
Eric H. Holder Jr. Published: April 29, 2021
The protest movement sparked by George Floyd’s killing last year has forced a nationwide reckoning with a wide range of deep-rooted racial inequities — in our economy, in health care, in education, and even in our democracy — that undermine the American promise of freedom and justice for all. That tragic incident provoked widespread demonstrations and stirred strong emotions from people across our nation.
While our state and local governments wrestle with how to reimagine relationships between police and the communities they serve, the Justice Department has long been hamstrung in its ability to mete out justice when people’s civil rights are violated.
The Civil Rights Acts passed during Reconstruction made it a federal crime to deprive someone of their constitutional rights while acting in an official capacity, a provision now known as Section 242. Today, when state or local law enforcement are accused of misconduct, the federal government is often seen as the best avenue for justice — to conduct a neutral investigation and to serve as a backstop when state or local investigations falter. I’m proud that the Justice Department pursued more Section 242 cases under my leadership than under any other attorney general before or since.
But due to Section 242’s vague wording and a series of Supreme Court decisions that raised the standard of proof needed for a civil rights violation, it’s often difficult for federal prosecutors to hold law enforcement accountable using this statute.
This timely report outlines changes to Section 242 that would clarify its scope, making it easier to bring cases and win convictions for civil rights violations of these kinds. Changing the law would allow for charges in cases where prosecutors might currently conclude that the standard of proof cannot be met. Perhaps more important, it attempts to deter potential future misconduct by acting as a nationwide reminder to law enforcement and other public officials of the constitutional limits on their authority.
The statutory changes recommended in this proposal are carefully designed to better protect civil rights that are already recognized. And because Black, Latino, and Native Americans are disproportionately victimized by the kinds of official misconduct the proposal addresses, these changes would advance racial justice.
This proposal would also help ensure that law enforcement officers in every part of the United States live up to the same high standards of professionalism. I have immense regard for the vital role that police play in all of America’s communities and for the sacrifices that they and their families are too often called to make on behalf of their country. It is in great part for their sake — and for their safety — that we must seek to build trust in all communities.
We need to send a clear message that the Constitution and laws of the United States prohibit public officials from engaging in excessive force, sexual misconduct, and deprivation of needed medical care. This proposal will better allow the Justice Department to pursue justice in every appropriate case, across the country.
Eric H. Holder Jr.
Eighty-Second Attorney General of the United States
Excessive use of force by law enforcement, sexual abuse by public officials and others in positions of authority, and the denial of needed medical care to people in police or correctional custody undermine the rule of law, our government, and our systems of justice.
When public officials engage in misconduct, people expect justice, often in the form of a federal investigation and criminal prosecution. In 2020 alone, instances of police violence, including the killings of George Floyd, Rayshard Brooks, and Breonna Taylor and the shooting of Jacob Blake, led to demands for increased police accountability and federal civil rights investigations. footnote1_bjVfnf9YDX6p 1 See Rashawn Ray, “How Can We Enhance Police Accountability in the United States?,” in Policy 2020, Brookings Institution, 2020, https://www.brookings.edu/policy2020/votervital/how-can-we-enhance-police-accountability-in-the-united-states/ [https://perma.cc/8Z9S-GRCU]; and Elliot C. McLaughlin, “Breonna Taylor Investigations Are Far from Over as Demands for Transparency Mount,” CNN, September 24, 2020, https://www.cnn.com/2020/09/24/us/breonna-taylor-investigations-remaining/index.html [https://perma.cc/4SR6-FG85]. See also, e.g., U.S. Attorney’s Office for the Eastern District of California, “Federal, State and Local Law Enforcement Statement on the Death of George Floyd and Riots,” press release, May 31, 2020, https://www.justice.gov/usao-edca/pr/federal-state-and-local-law-enforcement-statement-death-george-floyd-and-riots [https://perma.cc/V69J-49JR]; and U.S. Attorney’s Office for the Eastern District of Wisconsin, “Statement Regarding Federal Civil Rights Investigation into Shooting of Mr. Jacob Blake,” press release, January 5, 2021, https://www.justice.gov/usao-edwi/pr/statement-regarding-federal-civil-rights-investigation-shooting-mr-jacob-blake [https://perma.cc/5GCM-WJ7H].
For almost all incidents involving violence by law enforcement, there is one federal criminal law that applies: 18 U.S.C. § 242. Unlike nearly all other criminal laws, the statute does not clearly define what conduct is a criminal act. It describes the circumstances under which a person, acting with the authority of government, can be held criminally responsible for violating someone’s constitutional rights, but it does not make clear to officials what particular actions they cannot take. footnote2_nKLuVlX9sE38 2 Throughout this report, people who could be charged under § 242 are most often referred to as “public officials” or “law enforcement.” The Supreme Court has held, however, that § 242 may also be used to prosecute private actors whose authority to act in a given situation is derived from the state, such as a guard at a privately run prison. United States v. Price, 383 U.S. 787, 794 (1966), https://caselaw.findlaw.com/us-supreme-court/383/787.html [https://perma.cc/V6FU-ZQR6] (“To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”).
It need not be this way. The federal government must renew our national commitment to civil rights by enacting a criminal statutory framework that protects the fundamental constitutional rights of people who come into contact with public officials, including those who are being arrested or are in custody. footnote3_nSziiE2QYUOM 3 This report proposes changes to federal criminal civil rights laws that would apply to any public official who is acting with governmental authority, including police, prosecutors, judges, correctional officials, and more. Even though the law would apply to any public official who violated it, this report frequently uses the term “law enforcement” or “police” instead of “public officials” in discussions of violence and use of force since law enforcement officers — including police, correctional officials, sheriffs and their deputies, and federal agents — are the public officials most frequently involved in these incidents.
Recent instances of racialized police violence have made this matter all the more urgent. In 2020 alone, police killed more than 1,100 people. footnote4_rRHQcpIEDNRi 4 Mapping Police Violence, last accessed February 5, 2021, https://mappingpoliceviolence.org/. Black Americans are three times more likely to be killed by a police officer than white Americans and nearly twice as likely to be killed as Latino Americans. footnote5_veFhSA0NxB1l 5 Mapping Police Violence. See also Timothy Williams, “Study Supports Suspicion That Police Are More Likely to Use Force on Blacks,” New York Times, July 7, 2016, https://www.nytimes.com/2016/07/08/us/study-supports-suspicion-that-police-use-of-force-is-more-likely-for-blacks.html (“African-Americans are far more likely than whites and other groups to be the victims of use of force by the police, even when racial disparities in crime are taken into account.”). Police killing is a leading cause of death for Black men in the United States — one in every 1,000 Black men will die at the hands of police. footnote6_v1rQDkJ0jZoT 6 Frank Edwards, Hedwig Lee, and Michael Esposito, “Risk of Being Killed by Police Use of Force in the United States by Age, Race-Ethnicity, and Sex,” Proceedings of the National Academy of Sciences of the United States of America 116, no.34 (2019): 16793, 16794, https://www.pnas.org/content/pnas/116/34/16793.full.pdf [https://perma.cc/8W88-XWR9]. In 2019, Black people represented 24 percent of those killed, despite making up only 13 percent of the population, and although Black people are 3 times more likely to be killed by the police than white people, they are 1.3 times more likely than whites to be unarmed in such incidents. footnote7_c3XGrCXL4qzj 7 Mapping Police Violence. These disparities have led unprecedented numbers of Americans to demand justice for victims of police violence and changes to our criminal justice system. footnote8_vN5RcUki19jJ 8 Associated Press–NORC Center for Public Affairs Research, “Widespread Desire for Policing and Criminal Justice Reform,” June 15, 2020, https://apnorc.org/projects/widespread-desire-for-policing-and-criminal-justice-reform/ [https://perma.cc/HYU2–8J9R].
In addition to law enforcement brutality, other types of official misconduct shock the conscience. These include sexual misconduct by public officials; officials’ failure to provide medical treatment to people who are under arrest or in jail or prison; and pervasive violence by correctional officers in jails and prisons, where excessive force against incarcerated people is often shielded from public view. footnote9_kTc273UxqdCI 9 Lauren Brooke-Eisen, “The Violence Against People Behind Bars That We Don’t See,” Time, September 1, 2020, https://time.com/5884104/prison-violence-dont-see/ [https://perma.cc/GLP4-Y9XP]. The “shocks the conscience” standard is the long-established test for a Fourteenth Amendment violation under Rochin v. California, 342 U.S. 165 (1952), https://www.law.cornell.edu/supremecourt/text/342/165 [https://perma.cc/ZJ6S-UEDZ]. Yet cases are rarely prosecuted under § 242. footnote10_wLHTiMvUTa1C 10 TRAC Reports, “Police Officers Rarely Charged for Excessive Use of Force in Federal Court,” June 17, 2020, https://trac.syr.edu/tracreports/crim/615/ [https://perma.cc/9LTD-VN9N] (reporting that “between 1990 and 2019, federal prosecutors filed § 242 charges about 41 times per year on average, with as few as 19 times (2005) and as many as 67 times in one year”). See also U.S. Department of Justice, Civil Rights Division Highlights: 2009–2017, January 2017, 32–34, https://www.justice.gov/crt/page/file/923096/download [https://perma.cc/Q3Y3-FQCB] (reporting that the Civil Rights Division prosecuted 580 law enforcement officials for committing willful violations of civil rights and related crimes between 2009 and 2016); Brian R. Johnson and Phillip B. Bridgmon, “Depriving Civil Rights: An Exploration of 18 U.S.C. 242 Criminal Prosecutions 2001–2006,” Criminal Justice Law Review 34, no. 2 (2009), 196, 204 (observing that prosecutions under § 242 are a relatively rare event, and identifying a very small number of sexual misconduct cases); and Paul J. Watford, “Screws v. United States and the Birth of Federal Civil Rights Enforcement,” Marquette Law Review 98, no. 1 (2014), 465, 483, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5229&context=mulr [https://perma.cc/737F-XGW4].
Congress should make structural changes to our laws to help protect the civil rights of all people. If passed, the legislation recommended in this report would impact how law enforcement, corrections, and other public officials operate nationwide. By more specifically defining what actions violate civil rights, the law would put officials on clearer notice of what is forbidden. In addition, the proposed statute would specifically codify the authority to prosecute fellow officers or supervisors who know a civil rights violation is occurring but fail to intervene something the law already allows. footnote11_yKR78Lx4JgUD 11 See U.S. Department of Justice, “Law Enforcement Misconduct,” updated July 6, 2020, https://www.justice.gov/crt/law-enforcement-misconduct [https://perma.cc/LW5V-HZ8G] (“An officer who purposefully allows a fellow officer to violate a victim’s Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them.”). These changes to § 242 should result in modifications to police and law enforcement training across the country and also deter civil rights violations. footnote12_xhYkjKMdBNfX 12 Local law enforcement policies often provide vague, imprecise direction on use of force. These policies may focus on the extent of what is legally permitted rather than on best practices. Police Executive Research Forum, Guiding Principles on Use of Force, 2016, 15–16, https://www.policeforum.org/assets/30%20guiding%20principles.pdf [https://perma.cc/AQ5S-3Q5F]. For those public officials and law enforcement officers who do deprive someone of his or her civil rights, these changes would lower some of the barriers to federal prosecutions and civil lawsuits. footnote13_zAhx1nJtV2sk 13 The amendments proposed herein could also be made to 42 U.S.C. § 1983, although the specifics of § 1983 are beyond the scope of this report. In either event, a clarification of the civil rights protected by the Constitution and laws of the United States would make more plain which rights are “clearly established” in the context of civil lawsuits. See discussion of qualified immunity below at notes 47–49 and in accompanying text.
See Rashawn Ray, “How Can We Enhance Police Accountability in the United States?,” in Policy 2020, Brookings Institution, 2020, https://www.brookings.edu/policy2020/votervital/how-can-we-enhance-police-accountability-in-the-united-states/ [https://perma.cc/8Z9S-GRCU]; and Elliot C. McLaughlin, “Breonna Taylor Investigations Are Far from Over as Demands for Transparency Mount,” CNN, September 24, 2020, https://www.cnn.com/2020/09/24/us/breonna-taylor-investigations-remaining/index.html [https://perma.cc/4SR6-FG85]. See also, e.g., U.S. Attorney’s Office for the Eastern District of California, “Federal, State and Local Law Enforcement Statement on the Death of George Floyd and Riots,” press release, May 31, 2020, https://www.justice.gov/usao-edca/pr/federal-state-and-local-law-enforcement-statement-death-george-floyd-and-riots [https://perma.cc/V69J-49JR]; and U.S. Attorney’s Office for the Eastern District of Wisconsin, “Statement Regarding Federal Civil Rights Investigation into Shooting of Mr. Jacob Blake,” press release, January 5, 2021, https://www.justice.gov/usao-edwi/pr/statement-regarding-federal-civil-rights-investigation-shooting-mr-jacob-blake [https://perma.cc/5GCM-WJ7H].
Throughout this report, people who could be charged under § 242 are most often referred to as “public officials” or “law enforcement.” The Supreme Court has held, however, that § 242 may also be used to prosecute private actors whose authority to act in a given situation is derived from the state, such as a guard at a privately run prison. United States v. Price, 383 U.S. 787, 794 (1966), https://caselaw.findlaw.com/us-supreme-court/383/787.html [https://perma.cc/V6FU-ZQR6] (“To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”).
This report proposes changes to federal criminal civil rights laws that would apply to any public official who is acting with governmental authority, including police, prosecutors, judges, correctional officials, and more. Even though the law would apply to any public official who violated it, this report frequently uses the term “law enforcement” or “police” instead of “public officials” in discussions of violence and use of force since law enforcement officers — including police, correctional officials, sheriffs and their deputies, and federal agents — are the public officials most frequently involved in these incidents.
Mapping Police Violence. See also Timothy Williams, “Study Supports Suspicion That Police Are More Likely to Use Force on Blacks,” New York Times, July 7, 2016, https://www.nytimes.com/2016/07/08/us/study-supports-suspicion-that-police-use-of-force-is-more-likely-for-blacks.html (“African-Americans are far more likely than whites and other groups to be the victims of use of force by the police, even when racial disparities in crime are taken into account.”).
Frank Edwards, Hedwig Lee, and Michael Esposito, “Risk of Being Killed by Police Use of Force in the United States by Age, Race-Ethnicity, and Sex,” Proceedings of the National Academy of Sciences of the United States of America 116, no.34 (2019): 16793, 16794, https://www.pnas.org/content/pnas/116/34/16793.full.pdf [https://perma.cc/8W88-XWR9].
Associated Press–NORC Center for Public Affairs Research, “Widespread Desire for Policing and Criminal Justice Reform,” June 15, 2020, https://apnorc.org/projects/widespread-desire-for-policing-and-criminal-justice-reform/ [https://perma.cc/HYU2–8J9R].
Lauren Brooke-Eisen, “The Violence Against People Behind Bars That We Don’t See,” Time, September 1, 2020, https://time.com/5884104/prison-violence-dont-see/ [https://perma.cc/GLP4-Y9XP]. The “shocks the conscience” standard is the long-established test for a Fourteenth Amendment violation under Rochin v. California, 342 U.S. 165 (1952), https://www.law.cornell.edu/supremecourt/text/342/165 [https://perma.cc/ZJ6S-UEDZ].
TRAC Reports, “Police Officers Rarely Charged for Excessive Use of Force in Federal Court,” June 17, 2020, https://trac.syr.edu/tracreports/crim/615/ [https://perma.cc/9LTD-VN9N] (reporting that “between 1990 and 2019, federal prosecutors filed § 242 charges about 41 times per year on average, with as few as 19 times (2005) and as many as 67 times in one year”). See also U.S. Department of Justice, Civil Rights Division Highlights: 2009–2017, January 2017, 32–34, https://www.justice.gov/crt/page/file/923096/download [https://perma.cc/Q3Y3-FQCB] (reporting that the Civil Rights Division prosecuted 580 law enforcement officials for committing willful violations of civil rights and related crimes between 2009 and 2016); Brian R. Johnson and Phillip B. Bridgmon, “Depriving Civil Rights: An Exploration of 18 U.S.C. 242 Criminal Prosecutions 2001–2006,” Criminal Justice Law Review 34, no. 2 (2009), 196, 204 (observing that prosecutions under § 242 are a relatively rare event, and identifying a very small number of sexual misconduct cases); and Paul J. Watford, “Screws v. United States and the Birth of Federal Civil Rights Enforcement,” Marquette Law Review 98, no. 1 (2014), 465, 483, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5229&context=mulr [https://perma.cc/737F-XGW4].
See U.S. Department of Justice, “Law Enforcement Misconduct,” updated July 6, 2020, https://www.justice.gov/crt/law-enforcement-misconduct [https://perma.cc/LW5V-HZ8G] (“An officer who purposefully allows a fellow officer to violate a victim’s Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them.”).
Local law enforcement policies often provide vague, imprecise direction on use of force. These policies may focus on the extent of what is legally permitted rather than on best practices. Police Executive Research Forum, Guiding Principles on Use of Force, 2016, 15–16, https://www.policeforum.org/assets/30%20guiding%20principles.pdf [https://perma.cc/AQ5S-3Q5F].
The amendments proposed herein could also be made to 42 U.S.C. § 1983, although the specifics of § 1983 are beyond the scope of this report. In either event, a clarification of the civil rights protected by the Constitution and laws of the United States would make more plain which rights are “clearly established” in the context of civil lawsuits. See discussion of qualified immunity below at notes 47–49 and in accompanying text.
