Column: Police Killings of Unarmed Black Men: Why No Federal Prosecutions? (New York Law Journal)
by Christopher Dunn
Last week's decision by a grand jury not to indict the officer who shot and killed unarmed Michael Brown in Ferguson, Missouri, once again has triggered a national debate about criminal prosecutions of police officers.
Here in New York City that discussion has particular resonance in light of the November 20 shooting death by an NYPD officer of an unarmed Akia Gurley in a Brooklyn public housing complex and in light of the pending grand jury decision about criminal charges against the NYPD officer whose use of a chokehold resulted in the death of unarmed Eric Garner on Staten Island this past summer.
Time and again, local grand juries decline or refuse to indict police officers who have killed or severely injured unarmed black men. Against that background, the Brown, Garner, and Gurley deaths have prompted repeated calls for the federal government to prosecute the responsible officers.
The Justice Department under President Barack Obama has certainly been far more aggressive than under the Bush Administration in taking action against local police departments, particularly ones where race, shootings, and excessive force collide. But those initiatives have come primarily in the form of civil lawsuits designed to effect systemic reforms.
By contrast, federal criminal prosecutions of police officers remain relatively rare, with perhaps the most notorious contemporary example being the successful prosecution of Los Angeles Police Department officers involved in the 1991 beating of Rodney King. Closer to home, federal prosecutions of NYPD officers have targeted those involved in the August 1997 assault of Abner Louima in the bathroom of a Brooklyn precinct house as well as the officer who in December 1994 killed Bronx resident Anthony Baez with a chokehold after an errant football hit the officer's car. The most notable instance of federal prosecutors not pursuing charges against NYPD officers was with the four white members of the Department's Street Crime Unit who fired forty-one shots and killed unarmed African immigrant Amadou Diallo in February 1999.
As I have noted before, the paucity of federal civil rights prosecutions against police officers in part reflects the demanding legal standards governing such cases. Any consideration of possible federal prosecutions arising out of the Brown, Garner, and Gurley deaths must start with an understanding of those standards, which the Second Circuit addressed in a rare decision issued just last week.
The Basics of Civil-Rights Prosecutions
Federal civil-rights prosecutions in police misconduct cases are primarily based on a statute that dates back to the Civil War, when Congress enacted the Civil Rights Act of 1866. As amended and reenacted, the act's section 2 is now codified at section 242 of Title 18 of the United States Code and provides in relevant part as follows:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; . . . and if death results from the acts committed in violation of this section or if such acts include . . . an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
The broad sweep of this statute -- criminalizing violations of Aany rights, privileges or immunities secured or protected by the Constitution or laws of the United States -- spawned the seminal 1945 Supreme Court case construing the statute, Screws v. United States 1. Screws arose out of a shocking and revolting episode in which police officers from Baker County, Georgia arrested a Robert Hall at his home for the alleged theft of a tire. As the Court explained, Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three [officers] began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness.
The officers were convicted under section 242's predecessor for violating Hall's Fourteenth Amendment due process rights, including the right to a trial and to be punished as Georgia law prescribed. Though their appeal to the Supreme Court did not produce a majority opinion, five Justices agreed the statute was constitutional.
The issued presented was whether, by criminalizing violations of the Fourteenth Amendment's due process clause, the statute was unconstitutionally vague. More precisely, in light of the wide-ranging body of case law defining due process, [i]t is said that the Act must be read as if it contained those broad and fluid definitions of due process and that if it is so read it provides no ascertainable standard of guilt. Given the undeniable lack of precise boundaries to due process protections and the well-established requirement of precision in criminal statutes, this was not an inconsequential argument.
With a less than pellucid analysis, the Court resolved the issue by focusing on the statutory requirement that those charged had A willfully violated constitutional rights. According to the Court, concerns about the lack of specificity in the rights covered by the statute -- such as those conferred by the due process clause -- were remedied if the statute=s requirement of willful violations were read to provide that the statute was violated only when the defendant Ahad a specific intent to deprive a person of a federal right made definite by decision or other rule of law.
This did not mean, however, that defendants could only be convicted if they were thinking in constitutional terms. Rather, the touchstone was whether the intent was to deprive a citizen of a right and that right was protected by the Constitution. That intent Aneed not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act including the malice of the [officers], the weapons used in the assault, its character and duration, the provocation, if any, and the like In other words, if all the circumstances showed, for example, that an officer struck a person not to effect an arrest or some other legitimate purpose but instead for the specific purpose of injuring or killing the person, the officer could be prosecuted.
Turning to the beating death that prompted the prosecution before it, the Court explained that it was Aplain that the due process of law in a criminal case required a trial in a court of law, not a trial Aby ordeal. And in language that bears directly on police-shooting prosecutions, the Court explained,
Those who decide to take the law into their own hands and act as prosecutor, jury, judge and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him.
The Screws analysis, which frames police-officer prosecutions under section 242 to this day, yields several important points. First, federal civil rights prosecutions are not limited to situations in which officers are motivated by racial animus or other impermissible considerations; rather, the violation of any constitutional right may be a predicate for a federal prosecution. Indeed, prosecutions of police officers are more likely to involve Fourth Amendment excessive force claims than intentional race discrimination claims under the equal protection clause.
Second, a police officer's mere violation of a constitutional right does not constitute a crime under section 242. Instead, the violation must be willful, by which the Supreme Court means it must be done with the specific intent to deprive the victim of a right protected by the Constitution, though the officer need not be thinking in terms of the specified legal right.
Finally, the requisite intent need not be proven expressly but can be inferred from the circumstances of the act. Those circumstances might include, for instance, whether the officer knew the person was unarmed or posed no threat to the officer or others.
Second Circuit Overview of Section 242
Reflecting the infrequency of federal criminal prosecutions of police officers for civil rights violations under section 242, the Second Circuit has issued very few opinions on the issue. Indeed, the most recent one dated back to 1992 B until last week. Though a summary order, the court's November 24 decision in United States v. Cossette 2 provides a timely overview of the standards the Supreme Court articulated in Screws.
The federal government prosecuted Meridian, Connecticut, police officer Evan Cossette for his use of excessive force against an arrestee. According to the indictment, At the Meriden Police Department, COSSETTE escorted a compliant and handcuffed P.T. from the squad car to the holding cell. Once inside the holding cell, COSSETTE firmly shoved the compliant and handcuffed P.T., causing P.T. to fall backwards and strike his head on a cement cell bench. P.T. suffered a deep cut and trauma to his head that required medical attention. After a four-day trial, a jury convicted Cossette of violating section 242 and of other offenses, and he appealed to the Second Circuit, arguing B as had the defendant in Screws B this his conviction was invalid because the governing legal standards were too vague.
The Second Circuit rejected that argument, first noting that police officers long have been on notice that excessive force can rise to a constitutional violation actionable under section 242. Beyond that, the Court noted the fact that section 242 creates a high threshold by applying only to willful violations of constitutional rights:
Section 242 makes it a crime for any person acting under color of law willfully to deprive another person of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. 18 U.S.C. ' 242; Cossette acknowledges that, at least since Graham v. Connor, 490 U.S. 386 (1989), law enforcement officers have been on notice that the Fourth Amendment prohibits their use of excessive force during an arrest.
. . . .
Further undermining Cossette's notice challenge is the mens rea element of ' 242, which conditions criminal culpability on a defendant acting willfully. Thus, even if there were any uncertainty as to whether force could be used in the circumstances alleged in the indictment, Cossette was on notice that he could be held criminally responsible only if he specifically intended to use excessive force. See Screws v. United States, 325 U.S. 91, 101B03 (1945) (plurality opinion) (holding, in context of ' 242, that statute's requirement that act be willful or purposeful precludes notice challenges). The indictment charged Cossette with willful use of excessive force, and the district court correctly charged the jury that the government bore the burden of proving such willfulness beyond a reasonable doubt.
Brown, Garner, and Gurley
In thinking about possible federal criminal prosecutions under section 242 for the deaths of Michael Brown, Eric Garner, and Akai Gurley, the issue is whether the responsible officer willfully violated constitutional protections. Each of the three cases presents a very different situation.
In the Michael Brown case, if B as witnesses testified B he had his hands raised and was surrendering, the officer's indisputably intentional shooting of Brown plainly would constitute willful excessive force under the Fourth Amendment. The facts of the moment surrounding the shooting are heavily disputed, however, and the Justice Department reportedly has been backing away from a potential federal criminal prosecution.
As for Eric Garner, there is no factual dispute about what happened, as the encounter with the police officer and the officer's use of the chokehold were captured on a widely viewed videotape. Should the Staten Island grand jury now hearing the matter not indict the officer, the question for the Justice Department will be whether the use of the chokehold constituted excessive force under the circumstances and whether that force was willful.
Finally, last month's shooting of Akai Gurley in the darkened stairwell of a Brooklyn public-housing project is the most difficult to assess because so few of the facts are publicly known. If, as the NYPD has suggested, the officer=s weapon accidentally discharged while he was attempting to open a stairwell door and that he did not even know anyone was in the stairwell, that would undermine any suggestion of a willful violation of Mr. Gurley's constitutional rights. Should it turn out, however, that the officer intentionally fired his weapon and did so intending to shoot an unarmed Mr. Gurley, whom the NYPD has said was not engaged in any suspicious activity, that would present an entirely different situation for the Justice Department.
*Christopher Dunn is the associate legal director of the New York Civil Liberties Union and is an adjunct professor teaching in the Civil Rights Clinic of the NYU School of Law. He can be reached at email@example.com
1 325 U.S. 91 (1945) (plurality opinion).
2 2014 WL 6610002 (2d Cir., Nov. 24, 2014).