WASHINGTON – As lawmakers negotiate a bill to hold cops more accountable for violence in the line of duty, they're debating whether to soften what some say is a hard-to-reach federal standard that, if achieved, would be a major change in how officers are prosecuted.
The debate is about a provision of federal law known as Section 242, which serves as a backstop for state and local prosecutions of police. Federal charges are rare and can take years to pursue, but are often weighed in high-profile cases of police violence.
Federal prosecutors filed charges against former Minneapolis police officer Derek Chauvin in May, after he was convicted in April of murdering George Floyd. But federal charges were considered – and not pursued – in many other cases, such as the high-profile deaths of Eric Garner and Tamir Rice.
A year of nationwide racial justice protests spurred Congress to debate the policing overhaul, after the deaths of unarmed Black suspects at the hands of police. But the proposed remedies are contentious. Congressional Democrats and civil rights groups argue cops must be held more accountable by making it easier to file criminal charges under Section 242 and pursue civil lawsuits. But police organizations oppose the changes as a threat to their own safety in making split-second decisions in a high-pressure job.
More on civil lawsuits: Qualified immunity divides lawmakers in police reform talks. What is that legal defense?
More than 1,000 civilians are killed each year by police and the number of federal prosecutions against officers averaged 41 each year during the last two decades, according to an analysis of federal statistics by the Transaction Record Analysis Center at Syracuse University.
“The reason that they have filed charges so rarely is that the standard of proof is incredibly arduous,” said Hernandez Stroud, counsel at the Brennan Center for Justice at New York University. “You have to show that the defendant was acting for the express purpose of violating a person’s civil rights. By lowering that standard of intent, the hope is that prosecutors will more easily be able to pursue charges under the statute.”
Stroud said the federal law serves as another way to punish police when state prosecutions come up short.
“In some instances, a state may fail to initiate a case or to secure a conviction," Stroud said. "In cases like that, it’s very necessary to have in place an operable federal backstop to vindicate federal civil rights."
Section 242 at the heart of the debate
Section 242 of Chapter 18 of the U.S. Code requires one of the toughest burdens of proof in criminal law to convict officers.
The provision allows the Justice Department to charge officers who “willfully” deprive a suspect of civil rights, which aren't specified. The provision is vague enough that a Georgia sheriff once challenged it all the way to the Supreme Court, which yielded what legal experts say is "not a model of clarity." In another case, the high court provided guidance that prosecutors must prove the officer intended to act unreasonably in what can be a split-second decision.
The House voted in March as part of the policing overhaul to ease the standard from acting "willfully" to “reckless” conduct, which aims to punish conduct without knowing what the officer was thinking.
"The public wants to see police brutality, excessive force, end. They want to stop seeing the videotapes," said Rep. Karen Bass, D-Calif., who authored the legislation and acknowledged that changing Section 242 is contentious. "Accountability is absolutely key in the bill."
She's negotiating to keep the change with Sen. Tim Scott, R-S.C., who didn’t include a comparable provision in his policing legislation last year. He has argued that the overhaul shouldn't demonize police officers and that there is a "chasm" of differences between the bills.
“The devil in the details of the actual body of the pieces of legislation are complicated and there are very big differences," Scott said.
Another negotiator, Sen. Cory Booker, D-N.J., said lawmakers had "a really robust conversation" about Section 242 while meeting May 25 with Floyd's relatives on the anniversary of his death.
Negotiators hope to reach a compromise during June or July.
'Pretty difficult' to prove charges against police
Federal criminal prosecutions against police officers are rare. In the seven months before Floyd’s death, criminal charges were filed in 27 cases, according to TRAC. Prosecutions averaged 41 cases per year from 1990 to 2019, according to TRAC.
"It’s pretty difficult to prove these cases," said Philip Stinson, a criminal-justice professor at Bowling Green State University who analyzes charges against police. "I don’t know that moving the bar is going to change anything."
In one recent case, a federal jury convicted Brett Palkowitsch, a former officer with the St. Paul Police Department, in November 2019 for his response to a 911 call about a street fight involving a man with a gun.
Palkowitsch had kicked the suspect hard enough to break seven of his ribs and collapse both his lungs, while the suspect writhed in pain on the ground as a police dog mauled his leg, according to the Justice Department.
But the suspect, Frank Baker, a 52-year-old grandfather who lived in the neighborhood, hadn’t been involved in a fight and had no gun when police approached him while he sat in his car, chatting on a cellphone, according to the department.
Palkowitsch was sentenced June 2 to six years in prison. He has appealed the sentence.
The Justice Department charged Chauvin the day after a state court convicted him of second-degree murder for kneeling on Floyd’s neck and causing his death. The department also charged three former officers who were with Chauvin – Tou Thao, Alexander Kueng and Thomas Lane – in the same indictment with depriving Floyd of his civil rights.
Chauvin was charged with causing Floyd's death by unreasonable force. Thou and Kueng are charged with failing to intervene and stop Chauvin's use of unreasonable force. And all four where charged with "deliberate indifference to Floyd's serious medical needs."
Thou, Kueng and Lane's trials on state charges of aiding and abetting second-degree murder are pending and all have pleaded not guilty. Their arraignments on the federal charges are scheduled for Sept. 14.
Courts divided over 'poorly defined' terms
The statute that has become known as Section 242 was added to the federal code after the Civil War. But a 1989 Supreme Court decision called Graham vs. Connor, a shoplifting case where officers were accused of using excessive force in arresting the suspect, set the modern rules for prosecuting police.
Then-Chief Justice William Rehnquist wrote that excessive force cases can't be precisely defined, but that it must be judged "from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight." He noted that officers often make "split-second judgments – in circumstances that are tense, uncertain and rapidly evolving."
"The question is whether the officer's actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation," Rehnquist wrote.
Lower courts have been divided on how to interpret that guidance. Jeffrey Fagan, a professor at Columbia Law School who studies policing, said terms in the law are poorly defined, leaving elastic interpretations.
Acting "willfully" is a different standard than "premeditated" or "deliberative" terms used in state courts. In Pennsylvania, premeditation can mean drawing a gun and shooting, while in California, time has to elapse to qualify as premeditation, Fagan said.
Another question is which civil rights are being deprived. Is it the right to life and liberty, or to freedom from state coercion? Fagan asked.
“It’s kind of open-ended and poorly defined, and it creates a space where police officers can justify just about any act," Fagan said. "That’s the problem with it. That’s exactly why it’s up for reform now in the Congress."
The high court's split-second framework for making decisions allows officers to justify their hasty response to a perceived threat. Police wield force at a higher rate against Black suspects, but claims of police bias remain contentious, according to an article by Fagan and Alexis Campbell in the Boston University Law Review in 2020.
After reviewing 3,933 cases when police officers killed civilians from 2015 to 2018, the study found Black suspects were twice as likely to be killed as white suspects, “even when there are no other circumstances during the encounter that would make use of deadly force reasonable."
“There’s a controversy among people who try to do some analyses of the characteristics of the cases where police officers kill civilians as to whether or not it’s racially tinged," Fagan said. "Bias is hard to prove."
Prosecuting police officers is rare
Investigations under Section 242 take years and often don’t result in charges, such as in the cases of Eric Garner and Tamir Rice.
Garner died after a struggle with police, who were arresting him for suspicion of selling untaxed cigarettes in July 2014 in Staten Island, New York. A video showed the officer hold Garner in a chokehold for about seven seconds before the two men fell to the ground, but prosecutors said the hold wasn’t obviously intentional during the struggle.
After a New York grand jury declined to indict officers in the case, then-Attorney General Eric Holder opened a federal investigation in December 2014. But then-U.S. Attorney Richard Donoghue closed the case without charges in July 2019 by saying prosecutors couldn't prove beyond a reasonable doubt that Officer Daniel Pantaleo acted willfully.
“Mr. Garner’s death was a terrible tragedy,” Donoghue said. “But having thoroughly investigated the surrounding circumstances, the department has concluded that the available evidence would not support federal civil rights charges against any officer.”
Rice was 12 when he was shot and killed by Cleveland police Nov. 22, 2014. Police were called to a recreation center for a 911 report of a “guy with a pistol.” Rice had been seen brandishing a toy gun that the Justice Department said was “virtually indistinguishable from a real .45 Colt semi-automatic pistol.”
The department called Rice’s death “tragic” when closing the investigation in December 2020. But the department said it couldn't charge Officer Timothy Loehmann because grainy videotape didn’t contradict that the officer perceived Rice was reaching for a gun when officers arrived.
“This high legal standard – one of the highest standards of intent imposed by law – requires proof that the officer acted with the specific intent to do something the law forbids,” the department said in a statement. “It is not enough to show that the officer made a mistake, acted negligently, acted by accident or mistake, or even exercised bad judgment.”
Police groups oppose changes
Police organizations and their supporters in Congress have opposed changing the standard for prosecuting officers.
The Fraternal Order of Police said in a statement Saturday that it wouldn't yield on changes in protections for officers against civil lawsuits and wouldn't agree to changes in the "objectively reasonable" standard for charging police criminally. Police officers are protected from most civil lawsuits under a doctrine called qualified immunity, which lawmakers are considering changing, perhaps by allowing lawsuits against police departments.
The National Association of Police Organizations raised “significant concerns” about the House legislation dealing with qualified immunity and Section 242.
“Combined, these two provisions take away all good faith legal protections for officers while making it easier to prosecute them criminally for good faith mistakes on the job, not just criminal acts,” William Johnson, the group’s executive director, told House leaders in a letter Feb. 25.
Scott has repeatedly said he wouldn't agree to changes to Section 242, which could discourage police from responding to emergencies.
"If you don't protect the officers, you don't have anybody coming into the community and that's terrible," Scott said.
Christopher Brown, a lawyer who has represented victims of police violence at The Brown Firm in Virginia, said an important aspect of the House bill passed earlier this year would place the cases in the hands of an independent prosecutor appointed by the state attorney.
“The real difficulty is the relationships between the prosecutors and the officers being investigated when these things come up,” Brown said.
Colorado Gov. Jared Polis appointed state Attorney General Phil Weiser as a special prosecutor to investigate and potentially prosecute the Aurora police involved in the death of Elijah McClain. The Justice Department is also investigating.
McClain, 23, had been walking home from a convenience store in August 2019 when police were called for a suspicious man in a ski mask. McClain died several days after police struggled with him and placed him in a "carotid hold," which restricts blood to the brain. Police signed legislation in June 2020 prohibiting police from using carotid holds.
"Elijah McClain should be alive today, and we owe it to his family to take this step and elevate the pursuit of justice in his name to a statewide concern," Polis said in appointing Weiser.
Bass said she understood there was pushback from police and that some departments are having trouble recruiting. But she said all police are getting tarnished by misconduct such as Chauvin kneeling on Floyd’s neck for more than 9 minutes.
“There has to be a way to hold the individual officer accountable and the department accountable," Bass said. "If an officer steals, the officer should be prosecuted. If an officer commits a crime with an underaged – you know, girl or boy – the officer should be prosecuted. If the officer sexually assaults or harasses somebody under the color of law, he should be prosecuted. Do you have a problem with that? Does anybody have a problem with that? As far as I understand, those are crimes anyway."
This article originally appeared on USA TODAY: What is Section 242? Congress debates how to criminally charge police