George Floyd: Civil Rights Violations Require Intent- Another Look at the Ferguson Case

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Federal civil rights prosecutions against state actors (e.g., law enforcement) are usually conducted pursuant to 18 U.S.C §242, which makes it a crime for “any person acting under color of any law, statute, ordinance regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.” 

There are four elements to establish offenses under this section: (1) the victim must have been an inhabitant of a U.S. state, district, or territory when the alleged violation occurred; (2) defendant acted under color of any law;6 (3) the defendant’s conduct deprived the victim of some right secured or protected by the U.S. Constitution;7 and (4) the defendant acted willfully, that is, with specific intent to violate the protected constitutional right.

In Screws v United States, the U.S. Supreme Court narrowly interpreted the predecessor of Section 242, 18 U.S.C. §52, and upheld its constitutionality against a due process challenge that alleged that the statute was vague and lacked the specificity constitutionally mandated for criminal statutes. 

In reaching its decision, the Court examined the legislative history and noted the section’s origins as an “anti-discrimination measure” that was later extended to prohibit the “deprivation of any rights, privileges, or immunities” guaranteed by federal law. The Court concluded that the legislative history indicated a desire to reduce the section’s severity. To express this reduction in severity, Congress created a special requirement of intent to violate federal rights, rather than just a generalized “bad purpose.”

How should an officer react when he or she observes a colleague commit an act of excessive force in his or her presence?   

Supervisory responsibility is a fundamental principle that supervisors must intervene into subordinate officer’s conduct, but what about officers of equal rank? Two recent cases make clear that officers who have an opportunity to intervene in excessive use of force must do so or risk personal liability for a civil rights violation based upon their failure to intervene.

In an exciting and informative attack on the intent requirement in Civil Rights Violation cases, the author writes:

“When St. Louis County Prosecuting Attorney Robert McCulloch failed to obtain an indictment against the Ferguson police officer who killed Michael Brown, protestors were so convinced by now-discredited witness accounts that Brown’s hands were in the air when he was shot to death, that the slogan “Hands Up, Don’t Shoot” and the gesture of hands up, palms out became a national symbol of outrage. 

Indeed, Ferguson has since taken on the iconic significance of cities like Montgomery and Selma in the pantheon of historical places in the civil rights movement. Most prominent among the other uncharged officer-involved shootings that followed Ferguson is the chokehold death of Eric Garner in Staten Island; the fatal shooting of twelve-year-old Tamir Rice in Cleveland as he played with a replica of a semi-automatic pistol; the killing of John Crawford III while holding a BB/pellet air rifle he had picked up off a shelf while shopping at a Walmart in a suburb of Dayton Ohio; and the death of seventeen-year-old Laquan McDonald, who was shot sixteen times by a Chicago police officer indicted for first-degree murder only after a dashboard camera video of the incident—released 400 days after the shooting and only in response to a court order—showed that, contrary to police reports, McDonald, who was carrying a three-inch folding knife, did not attack or otherwise threaten the officer.

Almost two years after the death of Michael Brown, a deadly series of events, all occurring within a period of fewer than two weeks, demonstrated how horrific the crisis had become. Alton Sterling was killed while he was selling CDs outside a convenience store in Baton Rouge, Louisiana, and the very next day, Philando Castile was shot and killed, the aftermath of which was captured in an extraordinary video live-streamed on Facebook by his fiancée as he lay bleeding to death beside her during a traffic stop in a suburb of St. Paul, Minnesota.

 These devastating events were quickly followed by police officers’ retaliatory killings by African-American gunmen, first in Dallas and then in Baton Rouge.”

Any state civil rights violation cases are subject to federal law. 

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