Some version of this scenario is all too familiar: Police officers are acquitted of using excessive force—or never charged in the first place—even though a cell phone video shows them shooting or beating an unarmed victim, apparently without cause. And inevitably, some observers say it’s time for the U.S. government to step in and ensure justice for the victim. People who remember or have studied the Civil Rights Movement tend to think of federal charges for civil rights violations as the go-to back-up when local prosecutors, judges, and juries can’t or won’t convict police or other powerful officials who break the law. Sometimes it works. But in practice, it’s very difficult to get a conviction under federal civil rights law.
It’s a federal crime when a person who is acting under “under color of any law” (that is, under governmental authority or the pretense of authority) violates another person’s civil rights “willfully” (18 U.S.C. § 242). Police brutality or other misconduct may involve several constitutional rights, including:
The penalties under 18 U.S.C. § 242 increase when the crime leads to injury or death, or when it involves kidnapping or dangerous weapons.
According to the U.S. Supreme Court, the word “willfully” in 18 U.S.C. § 242 means that the defendants must have had a “specific intent” to deprive the victim of a particular federal right, but it doesn’t necessarily mean they were “thinking in constitutional terms” (Screws v. U.S., 325 U.S. 91 (1945)). Even if that sounds confusing, the “specific intent” standard is a tough one to meet—which is why the Justice Department often resists pressure to bring charges in notorious cases of killings by police. (Of course, changing priorities under different federal administrations also affect these decisions.)
Still, the feds have gotten convictions in some famous cases, from the “Mississippi Burning” murders of three young civil rights workers in the 1960s to the police officers who beat Rodney King in the early 1990s. Another case from the early 2000s provides an example of what it takes to prove specific intent. Kentucky corrections officers were convicted of violating the civil rights of teenager who’d been raped in jail after being picked up on a traffic violation. Evidence showed the officers teased the youth repeatedly for looking like a “sissy,” said he “needed to be scared,” put him in a cell that had a reputation for sexually predatory behavior, and told the other inmates to “f-ck with” him. When the appeals court upheld their convictions, it said they “acted with deliberate indifference” and “took affirmative steps” to place the victim in harm. (U.S. v. Lanham, 617 F.3d 873 (6th Cir. 2010).)
The Justice Department may also charge defendants under other federal civil rights violations and hate crimes, including:
Some states also make a crime to violate rights under their state constitutions—which may include some rights that aren’t protected under the U.S. Constitution (see, for example, Mass. Gen. Laws ch. 265, § 37). In some states, however, the penalties are very low under these statutes (such as Cal. Penal Code § 422.6). So state prosecutors are more likely to use other criminal laws, like unlawful use of excessive force, to prosecute police brutality.
If you’ve been the victim of police brutality or another violation of your civil rights, you can always try reporting it to the F.B.I. or your local U.S. Attorney. But victims have another tool to seek justice: They may sue the police for violating their civil rights under the Civil Rights Act of 1871 (42 U.S.C. § 1983) or sue law enforcement for emotional distress. The legal standard of proof is lower in these civil lawsuits than in criminal cases. However, anyone suing police, the city, or the county may find that the governmental defendants are protected from liability under laws giving them some level of “immunity.” If you’ve been the victim of police brutality or other governmental action that violated your rights, you should speak to a lawyer. An experienced attorney can explain the law that applies to your situation, whether the defendant could qualify for immunity, and the legal options that are available to protect your rights.