Tiffany Morey and Kate McLean
Federal Prosecutions: Section 242
Depending upon the specific circumstances, police officers may also face federal criminal or civil charges; in fact, federal law allows for entire law enforcement agencies or cities to be sued, when a policy or training practice is believed to underlie a pattern of police misconduct.
Prosecutions of individual police officers in federal court commonly happen under 18 U.S.C. Section 242 (Section 242, for short), which makes it a crime “for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States” <footnote>United States Department of Justice. (2021). Deprivation of Rights Under Color of Law. </footnote> Here, an individual acting in their capacity as law enforcement – whether on or off-duty – is acting “under color of law,” while the right or privilege in question may vary; unjustified police use-of-force is governed by the 4th amendment, which protects citizens against unlawful seizures (including the “seizure” of their life). Section 242 does posit a high evidentiary standard for prosecutors to overcome. Specifically, they must prove that a police officer “willfully” acted to harm the individual in question – that they knew their actions were illegal, and yet they intentionally pursued them anyways. For this reason, Section 242 prosecutions are rare, and successful Section 242 cases are even more uncommon.
Under Color of Law: Two Recent Section 242 Prosecutions
While few Section 242 cases are prosecuted successfully, two recent cases bucked this trend, perhaps on the basis of video evidence that spurred widespread national condemnation. In December 2017, Michael Slager, a North Charleston police officer, was sentenced to 20 years in federal prison for the murder of Walter Scott. Dashcam footage captured at the scene showed Slager shooting Scott as he fled a traffic stop; Slager was subsequently seen planting his taser near the victim’s body, a ruse so that he might claim self-defense after the fact.
More recently, four Minneapolis police officers were convicted under Section 242 for the murder of George Floyd – Derek Chauvin, Tou Thao, J. Alexander Kueng, and Thomas Lane. Importantly, the latter three defendants were convicted specifically for their failure to intervene as their colleague, Chauvin, suffocated Floyd – an important precedent for later Section 242 suits.
Federal Prosecutions: Section 1983
While public attention tend to focus on individual officers accused of misconduct, there are powerful federal mechanisms for the redress of wrongdoing at the level of entire police departments. For example, under 42 U.S.C. § 1983 (Section 1983, for short), victims of police misconduct may seek a civil remedy in federal court – including monetary damages, or an injunction against a policy or program that is believed to violate individuals’ civil rights. Like Section 242, Section 1983 specifically applies to persons “acting under color of law,” but may be used to sue law enforcement agencies or municipalities. For example, Floyd v. City of New York represents one of the most powerful Section 1983 cases to date. Filed on behalf of the “minority civilians of the City of New York,” Floyd – a class-action lawsuit – argued that the New York City Police Department’s “Stop-and-Frisk” program represented a form of illegal racial profiling, with Black and brown men disproportionately targeted for pat-down searches, without reasonable suspicion. Ultimately, the trial judge agreed, effectively ordering the end of “stop-and-frisk” as it was carried out.
A Pattern or Practice: Consent Decrees
The Violent Crime Control and Law Enforcement Act of 1994 authorized the Civil Rights Division of the U.S. Department of Justice (DOJ) to initiate civil actions against entire police agencies, if evidence suggests a “pattern or practice” of violating civilians’ constitutional rights (for example, through the use of excessive force, illegal stops and searches, or racial discrimination). If a “pattern or practice” investigation yields affirmative evidence, the Justice Department may offer departments one of two options: to cooperate under a consent decree, which requires significant changes to the illegal polices, programs, or practices – OR, to face a lawsuit in federal court. Given the absence of other federal regulatory mechanisms around local policing, consent decrees represent the most powerful federal tool for changing illegal police practices at the local level. The City of Pittsburgh was the first locality to be subjected to a consent decree in 1997, which it remained under until 2002.
