When I teach civil rights law, I always start the semester with a misleadingly straightforward hypothetical scenario. Imagine a police officer pulls over an unarmed driver for a broken taillight and eventually shoots and kills the driver. Did the officer break any criminal or civil rights laws? This exercise never fails to set off a fiery debate: “Did the driver obey the officer?” “Why couldn’t the cop have used a taser?” “Don’t people have a right to not to be killed over a minor traffic infraction?” And sooner or later, one student typically reminds the class of a fundamental point about America: “But he’s a police officer.”
Think about that. “But he’s a police officer.”
When cops, unlike average civilians, deploy brute force under certain circumstances, we excuse the violence as law and order. But when law enforcement officers abuse their authority, violating our rights, we have federal criminal civil rights law to hold them accountable.
Except we pretty much don’t.
Section 242 of Title 18 of the federal code makes it a crime for a public official acting in their official capacity to willfully deprive a person of their constitutional rights. Yet prosecutors rarely bring charges under the statute, averaging just 41 cases per year. The recent federal indictment of the Minneopolis police officers related to the killing of George Floyd is an exception that highlights just how infrequent such prosecutions are, even when they are clearly warranted.
Why? The answer boils down to a little-known 1945 Supreme Court case called Screws v. United States.
In that case, Sheriff Claude Screws of Baker County, Georgia, had arrested Robert Hall, a Black man, for allegedly stealing a tire. Screws and two other officers then drove Hall to the local courthouse, where they bludgeoned him — while he was handcuffed — with their fists and a blackjack. The officers then dragged Hall’s limp body from the courthouse to the jail and called an ambulance. Hall died within the hour.
Screws was charged and convicted under the law known today as 242. But he appealed. Screws’s argument went something like this: because 242 is so poorly written, he couldn’t have known that he was breaking it. And punishing him for a law that he couldn’t have known he was breaking, his logic ran, violated his due process rights under the Fifth Amendment.
The Supreme Court agreed and overturned Screws’s conviction. To hear the justices tell it, the statute was indeed so vague that it had failed to give him fair warning about what he could and couldn’t do. But rather than strike down 242, the Court decided instead to save the law from unconstitutionality, holding that to violate the law, a public official need “willfully” deprive a person of their constitutional rights.
If only curing 242’s deficiencies had been so simple.
But Congress can fix it, and the Brennan Center has published a report laying out a blueprint enabling lawmakers to do just that. And it is essential because there are so many places where a lack of local accountability allow police to act with impunity. The broad strokes are illustrated by our two main suggestions.
Start with 242’s due process problem. Recall from the Screws case that criminal defendants bear a right to know what conduct is illegal. Our first recommendation would take care of this by having Congress spell out what conduct is off limits. It can do this by including some of the most egregious criminal civil rights violations the Supreme Court has long understood as out-of-bounds — excessive force, sexual misconduct, and deliberate indifference to the medical needs of a person in custody.
Turn now to 242’s high standard-of-proof problem. Thanks to the Screws opinion, prosecutors must establish beyond a reasonable doubt that a public official “willfully” deprived a person of their rights. But proving specific intent — basically, establishing what a person was thinking when they acted — is a difficult needle to thread. Hence prosecutors’ reluctance to bring 242 charges. Indeed, just look at what all it took for Derek Chauvin’s 242 indictment to happen: a chilling video capturing the barbaric plunder of George Floyd’s body that sparked a national racial awakening.
Our second recommendation would remedy this. Congress should lower 242’s intent standard from “willfully” to “knowingly or recklessly.” No longer would a jury need to try to peer into a defendant’s mind as part of finding a defendant guilty.
By taking together our twin suggestions, Congress would make it easier to pursue and prove 242 violations. And that would signal that our Constitution cannot tolerate palpable misconduct and brutality. That the lives of those routinely subjected to state cruelty matter. That America can be better than this.