Skip Navigation
Report

Protecting Against Police Brutality and Official Misconduct

Amendments to the criminal civil rights law could provide the federal government with a powerful tool to pursue law enforcement accountability.

Published: April 29, 2021
Protester holds sign, "Police the police."
SOPA Images/Getty

Foreword

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

Introduction

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_i59wjl1 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_m2ghz43 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_gg3mg1u 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_1n86jqd 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_gk7taz6 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_shairk2 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_pemewoy 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_5sil39l 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_hgloif7 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_11uf26c 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_h0rukz5 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_hg5781w 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_qnbw1be 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.

End Notes