The Feds Should Charge Darren Wilson…But they can’t, because the Supreme Court gutted the civil rights law he violated.
Attorney General Eric Holder holds a news conference discussing the Justice Department’s investigation of the shooting of Michael Brown in Washington, D.C., on Sept. 4, 2014.
Photo by Gary Cameron/Reuters
Following the news that a St. Louis County grand jury failed to indict Darren Wilson for the shooting of Michael Brown, attention turned to the possibility of a federal charge against Wilson. Attorney General Eric Holder quickly announced that that Justice Department’s investigation into the shooting remains “ongoing,” “thorough,” and “independent.” His comments seemed calibrated to keep alive the hope that the federal government may yet charge Wilson for criminally violating Brown’s civil rights.
Mark Joseph Stern is a writer forSlate. He covers science, the law, and LGBTQ issues.
Don’t believe it. In the end, the feds will almost surely decide not to charge Wilson—and even if they did charge him, he’d probably still walk free. In all likelihood, the St. Louis grand jury’s decision marks the end of Wilson’s criminal prosecution. Federal law surrounding racially motivated police shootings is unaccountably convoluted and hopelessly muddled. But one thing is clear: In their current form, our federal civil rights laws let cops pull the trigger with near-total impunity.
It wasn’t always that way. The law under which Holder could theoretically charge Wilson, now called Section 242, was passed in 1870 to secure robust legal protections for newly freed blacks in the South. Congress had recently passed amendments guaranteeing former slaves citizenship, equal protection of the laws, due process, and voting rights, which the states (including several under Reconstruction in the South) then ratified. But a number of viciously racist groups, including the newly formed Ku Klux Klan, had effectively negated these new rights, terrorizing black communities through arson, beatings, and lynching.
Congress had already passed laws requiring Southern states to recognize their black citizens’ newfound freedoms. But violent groups like the KKK were often aided if not led by local governments and law enforcement. Blacks suddenly had a vastly expanded roster of rights, yet racist officials and crooked cops were colluding to ensure that they couldn’t exercise any of them. So Congress passed the Enforcement Act of 1870, part of which survives today as Section 242. As its title suggests, the act enforced the new amendments by making it a federal crime to deprive any person of his constitutional rights while acting “under color of any law.”
In their current form, our federal civil rights laws let cops pull the trigger with near-total impunity.
In addition to voting rights and equal protection, the law’s supporters had a particular right in mind: the Constitution’scommand that no person may be “deprived of life, liberty or property without due process of law.” When a police officer kills or beats a citizen unjustifiably, he’s depriving him of “life” or “liberty” without due process—a clear violation of Section 242.
For decades, this plain reading of this law was understood, and Congress periodically amended the law to keep it clear and up-to-date. But in 1945, the Supreme Court muddied the waters. The court reviewed the conviction of Claude Screws, a sheriff in Baker County, Georgia. Screws had arrested a black man, Robert Hall, for the alleged crime of stealing a tire, then driven him to the courthouse, accompanied by two other officers. When Hall exited the car, Screws and the officers beat him with their fists and a club for about half an hour. They then dragged his unconscious body into a jail cell and called an ambulance. He died in the hospital soon after.
Screws was convicted under the law known today as Section 242. He promptly appealed, challenging the constitutionality of his conviction. (While his case was being reviewed, Screws ran for re-election and won by a 3-to-1 margin.) He argued, somewhat ironically, that he, not his victim, had been deprived of due process. The law he had been charged with, Screws claimed, was unconstitutionally vague; in other words, it was so nebulously worded that he couldn’t have known he was violating it.
The Supreme Court agreed and overturned Screws’ conviction. On its own, the justices held, the statute was too hazy to serve the demands of due process because it contained no “ascertainable standard of guilt.” So, failing to find a standard, the court made one up. In 1909, Congress had added the requirement that one must “willfully” deprive another of rights in order to violate Section 242. With the addition of the “willful” standard, the court decided, the statute now required a specific intent to violate someone’s constitutional rights. Thus, while the prosecutor may have proven that Screws deprived Hall of his constitutional rights, he hadn’t proven that Screwsintended to deprive Hall of these rights. Screws was given a new trial under the new standard. The jury let him go.
By essentially rewriting the statute, the Supreme Court was responding to legitimate constitutional concerns. But the extraordinarily high “intent” requirement quickly hamstrung prosecutors, who could rarely prove to a jury that even a Klansman had lynched his victim for the purpose of depriving his victim of rights. Section 242 became a rarely used tool, employed only in extreme cases—like the infamous Mississippi murder of three civil rights workers, which, the Supreme Court agreed, was committed with the intent of preventing them from securing voting rights for blacks.
In fact, the Screws revision of Section 242 is so extreme that a number of judges havetried to wriggle out of it. The Screws opinion suggests several times, bizarrely, that acting in “reckless disregard” of constitutional rights could qualify as “intent” and satisfy Section 242. Recklessness isn’t the same thing as intent, and this wording was probably just a fumble—but some courts have grabbed the ball and run with it. In one such ruling, the 3rd Circuit found that when a police officer chooses to disregard a citizen’s constitutional rights, he’s met the “intent” standard and violated Section 242.
But these courts are in a minority, and most judges still read Screws to mean that you can’t win a Section 242 case without demonstrating actual intent. Can the Justice Department prove to a grand jury (let alone a trial jury) that Darren Wilson shot Michael Brown for the purpose of violating his rights? The answer is almost certainly no—which is why the government won’t bring any charges.
This outcome is, no doubt, unjust. It is also an entirely predictable result of Screws, a result anticipated by the one justice who would have affirmed Sheriff Screws’ conviction. Writing in dissent, Justice Frank Murphy insisted that Screws’ victim had a right to “life itself”:
That right was his because he was an American citizen, because he was a human being. As such, he was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is recognized and guaranteed by the Constitution. Yet not even the semblance of due process has been accorded him. … Too often unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority. … [W]here, as here, the states are unwilling for some reason to prosecute such crimes the federal government must step in unless constitutional guarantees are to become atrophied.
Brown had the right to “life itself,” too. Wilson took it away—and there’s almost nothing the federal government can do about it. The KKK began its reign of terror in 1865. The brutal Selma assault on civil rights protesters occurred in 1965. And in 2014, we still don’t have a federal law to protect unarmed black boys from getting gunned down by cops in the street.