by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Faculty Advisor to the Washington College of Law ACS Student Chapter
*This post is part of our two-week symposium on racial inequalities in the criminal justice system.
The recent killings by police officers of Michael Brown and Eric Garner, and the failure of grand juries to charge the responsible officers under state law, once again have elevated the relationship between minority communities and the police forces that serve them onto the national stage. The issue has periodically gained attention following dramatic incidents, such as the beating of Rodney King in 1991, the killing of Amadou Diallo in the Bronx in 1999 and the multiple killings on the Danziger Bridge in New Orleans following Hurricane Katrina. These incidents are invariably racially charged, and they invariably cause victims, families and communities seeking a remedy for racial injustice to turn to the federal government to pursue federal criminal civil rights charges.
Yet, unknown to most people – including confused “experts” rolled out by the media – the federal criminal law pursuant to which these cases are prosecuted, 18 U.S.C. 242, does not require proof of racial intent as an element of the crime. Indeed, the vaguely worded statute subjects to criminal liability anyone who “under color of any law . . . willfully subjects any person . . . to the deprivation of any rights . . . secured or protected by the Constitution or laws of the United States . . . .” The statute was originally enacted in 1866, narrowed in 1909, and has since been revisited only to enhance its penalties. Congress’s failure to update the statute means that a law that was enacted 149 years ago for application in a very different society to very different circumstances – and which has subsequently been largely rewritten through judicial interpretation – is the principal federal tool for prosecuting police officers.
Section 242 was originally enacted as a buffer between freed slaves and southern states, but along with most of Reconstruction’s civil rights protections, it fell into disuse through restrictive judicial interpretations and a failure of political will. Restrictive readings of “color of law” and the scope of constitutional rights, and the Supreme Court’s attempt to save the statute from unconstitutional vagueness by requiring proof of specific intent, undermined the statute. Under the Court’s interpretation, juries must find that the defendant knowingly engaged in conduct that violated a clearly established federal right even though he need not have been aware of the legal definition of the right. The mental jujitsu required to apply the standard has befuddled juries ever since and made the Department of Justice cautious in enforcing the statute.
The statute also requires the identification of a federal right. The Court has held that a shooting or beating while a suspect is being taken into custody is a seizure which, pursuant to the Fourth Amendment, must be reasonable. Reasonableness requires an objective calculation of what a reasonable officer would do, but it must take into account all of the pressures, uncertainties and confusion that confronted the defendant officer. Therefore, on one hand the standard is objective, but its application becomes subjective when taking into account the officer’s perceptions.