Federal Police Oversight: Criminal Civil Rights Violations Under 18 U.S.C. § 242

Federal Police Oversight: Criminal Civil Rights Violations Under 18 U.S.C. § 242

Legal Sidebari
Federal Police Oversight: Criminal Civil
Rights Violations Under 18 U.S.C. § 242
June 15, 2020
The May 2020 death of George Floyd in police custody and subsequent nationwide protests against the
use of force by law enforcement have sparked heightened interest in Congress’s ability to prevent and
remedy civil rights abuses by public safety officers. Among other existing legal remedies, a provision of
the federal criminal code, 18 U.S.C. § 242 (Section 242) makes it a crime for government officials,
including law enforcement officers, to subject any person to a deprivation of federal y protected rights or
impose different punishments based on a person’s race. This Sidebar provides an overview of Section 242
before discussing proposals to amend the law, as wel as certain legal considerations related to those
proposals.
History and Text of Section 242
Section 242 originates from section 2 of the Civil Rights Act of 1866. Congress amended and broadened
the statute in 1874 pursuant to its constitutional authority to enforce the protections of the Fourteenth
Amendment through “appropriate legislation.” Although Congress has amended the statute several times
since then and changed its location in the U.S. Code, the law’s core prohibition has changed little since
the nineteenth century. As currently in force, Section 242 imposes criminal penalties on any person acting
“under color of any law, statute, ordinance, regulation, or custom” who
willfully subjects any person . . . to [1] the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States, or to [2] different punishments,
pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens[.]
A simple violation of the statute is punishable by a fine and/or up to a year in prison. If bodily injury
results, the offender may be fined and/or imprisoned for up to ten years. If death results or other
aggravating factors are present, Section 242 provides for a fine and/or imprisonment for ten years to life
or a death sentence (though the Constitution forbids death sentences for non-homicide offenses).
A related provision of federal criminal law, 18 U.S.C. § 241 (Section 241), makes it a crime for “two or
more persons [to] conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or
enjoyment of any right or privilege secured to him by the Constitution or laws of the United States[.]”
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Violations of Section 241 are punishable by up to ten years in prison or, if certain aggravating factors are
present, up to life in prison or death.
Enforcement and Judicial Interpretation of Section 242
The U.S. Department of Justice (DOJ) enforces Section 242 by bringing criminal charges against
individuals accused of violating the statute. People who believe their rights have been infringed may
report such violations to DOJ, but Section 242 provides no private right of enforcement, meaning that
victims of official misconduct cannot sue under the statute. (A victim of conduct that violates Section 242
may be able to bring a separate civil suit under 42 U.S.C. § 1983 (Section 1983) or, for federal officers,
under the Bivens doctrine, though qualified immunity may limit officials’ liability.) To secure a criminal
conviction under Section 242, DOJ must establish three elements: (1) the defendant acted “under color
of” law; (2) the defendant acted “wil fully”; and (3) the defendant deprived the victim of rights under the
Constitution or federal law or subjected the victim to different punishments on account of the victim’s
race, color, or alien status. The following subsections examine each of those elements in greater detail.
Acting Under Color of Law
Section 242 applies only to persons acting “under color of” law, meaning “under ‘pretense’ of law.” That
statutory phrase originates from the Reconstruction era, and variations of it appear in multiple federal hate
crime and civil rights statutes. Essential y, a person acts under color of law when they act with either
actual or apparent federal, state, or local government authority. Officers and employees of the government
general y fal within this category: the Supreme Court has held that “officers of the State . . . performing
official duties,” including public safety officers, act under color of law for purposes of Section 242. State
officials act under color of law if they derive their perceived authority from state or local law, even if their
conduct was not actually authorized under state or local law. For instance, in one leading case, a Georgia
sheriff who arrested a black man on suspicion of theft and then beat him to death argued that he did not
act under color of state law because the kil ing was il egal under Georgia law. The Supreme Court
rejected that argument, explaining that “[a]cts of officers who undertake to perform their official duties
are included whether they hew to the line of their authority or overstep it.”
Off-duty law enforcement officers may be subject to Section 242 if they act or claim to act in their official
capacity. Moreover, a person need not actual y be a government employee or official to act under color of
law. For example, in United States v. Price, the Supreme Court held that private individuals who
conspired with law enforcement to murder three civil rights workers could be charged under Section 242.
However, a person acting purely in a private capacity is not subject to the statute, even if the person is a
government employee: the Supreme Court has stated that “acts of [law enforcement] officers in the ambit
of their personal pursuits are plainly excluded.”
Deprivation of Rights
A defendant may violate Section 242 by depriving a person of “any rights, privileges, or immunities
secured or protected by” either the “laws of the United States” or the Constitution. With regard to the
“laws of the United States,” it is unclear if DOJ has brought Section 242 charges in recent history based
solely on statutory violations. In the analogous context of civil claims under Section 1983, courts have
shown reluctance to imply a civil remedy for statutory violations; the courts may be even less likely to
impose criminal liability under statues that do not expressly provide for it. Moreover, the scope of
statutory rights subject to Section 242 may be limited by the constitutional authority Congress relied on to
enact the statute. As noted, Section 242 is a product of Congress’s power under Section 5 of the
Fourteenth Amendment, which al ows Congress to enforce the Fourteenth Amendment’s guarantees
through “appropriate legislation.” As a recent Legal Sidebar discusses in greater detail, Supreme Court

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precedent al ows Congress to use its Section 5 authority to enact prophylactic legislation regulating state
and local matters based on evidence of a history and pattern of past constitutional violations by the states,
if such federal legislation is congruent and proportional to a demonstrated constitutional wrong. Absent
such circumstances, however, it uncertain when Section 242 could be used to prosecute violations of
“laws of the United States” that do not amount to violations of the Constitution.
In light of the foregoing, prosecutions under Section 242 general y al ege a deprivation of constitutional
rather than statutory rights. Charges under Section 242 may involve rights guaranteed by the Fourteenth
Amendment, including provisions of the Bil of Rights that have been incorporated against the states. For
example, DOJ has brought Section 242 charges based on infringement of the right to vote, imposition of
cruel and unusual punishment, and various due process violations. And, of particular relevance to law
enforcement reform, DOJ may bring Section 242 charges al eging the use of excessive force in violation
of the Fourth Amendment’s protections against unreasonable seizures.
Differential Punishment
In the alternative, a defendant may violate Section 242 by subjecting a person to different “punishments,
pains, or penalties” “by reason of” the victim’s color or race or “on account of” the victim’s alien status.
In practice, however, it appears DOJ rarely brings charges under this provision of Section 242. One
reason for this seems to be the general difficulty of proving that a defendant had a particular subjective
motivation—in this context, the motivation to impose a different punishment “by reason of” the victim’s
race or other covered characteristic. Furthermore, a DOJ official involved in Section 242 litigation in the
1940s stated: “When a community has consistently permitted its law enforcement officers to deny the
protection of the laws to certain groups, the same methods wil assuredly be used against members of
other groups who happen to offend the officials.” Thus, pervasive misconduct by law enforcement
officers could undermine DOJ’s case on this element. Another possible reason for the dearth of charges
under the “punishments, pains, or penalties” provision of Section 242 is that conduct that violates that
provision likely also violates the statute’s deprivation of rights provision: the Equal Protection Clause
prohibits the government from imposing different punishments because of a person’s race.
Willfulness Requirement
By its text, Section 242 applies only to violations that are committed “wil fully.” The Supreme Court
stringently construed the wil fulness standard in the 1945 case Screws v. United States (the main opinion
in Screws was joined by only four justices, but binding opinions of the Supreme Court have since adopted
its analysis). In Screws, a defendant convicted of violating the statute now codified as Section 242 argued
that the law was void for vagueness—that is, it violated the Fifth Amendment’s Due Process Clause
because it did not give potential defendants clear notice of the conduct it proscribed. The Supreme Court
rejected that argument by interpreting “wil fully” to require the government to show that a defendant
acted with a “specific intent to deprive a person” of constitutional rights or with “open defiance or in
reckless disregard of a constitutional requirement.”
The Screws plurality recognized that its interpretation of Section 242 differed from the usual mental state
standard in criminal cases. To obtain a conviction for a crime, the plurality explained, the prosecution
usual y must show that the defendant intentional y performed some action, and the action was prohibited
by law; but prosecutors ordinarily need not show that the defendant knew the conduct at issue was il egal
or specifical y intended to violate the law. However, Section 242 imposes criminal liability for
constitutional violations, and courts examining the “broad and fluid definitions of due process” may
interpret the Constitution to protect rights not expressly enumerated in the Constitution or prior court
decisions. In those circumstances, the plurality observed, “Those who enforced local law today might not
know for many months (and meanwhile could not find out) whether what they did deprived some one of

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due process of law.” In the view of the Screws plurality, such a construction would raise serious
vagueness concerns:
Under that test a local law enforcement officer violates [Section 242] and commits a federal offense
for which he can be sent to the penitentiary if he does an act which some court later holds deprives
a person of due process of law. And he is a criminal though his motive was pure and though his
purpose was unrelated to the disregard of any constitutional guarantee.
To avoid that result, the plurality concluded that in a Section 242 case the prosecution must prove the
defendant had “a specific intent to deprive a person of a federal right made definite by decision or other
rule of law.” Such a defendant cannot assert a lack of notice because he “is aware that what he does is
precisely that which the statute forbids.” However, the plurality explained, the defendant’s “purpose need
not be expressed; it may at times be reasonably inferred from al the circumstances attendant on the act.”
Much of the analysis in Screws indicates that Section 242 requires proof that a government official
intended to violate a specific federal right of which the officer either knew or had notice. For instance, the
defendant in Screws was a sheriff who beat to death a man in his custody. The plurality concluded that it
was not enough to show a “general y bad purpose” to assault the arrestee; rather “it was necessary for [the
jury] to find that [the defendant] had the purpose to deprive the prisoner of a constitutional right, e.g. the
right to be tried by a court rather than by ordeal.” However, other portions of the Screws plurality opinion
could suggest a less stringent mental state requirement. For instance, the plurality stated that “[t]he fact
that the defendants may not have been thinking in constitutional terms is not material where their aim was
. . . to deprive a citizen of a right and that right was protected by the Constitution.” The plurality further
opined that Section 242 defendants must “at least act in reckless disregard of constitutional prohibitions
or guarantees”—indicating it might suffice for a defendant to ignore rather than deliberately violate a
constitutional right.
Lower federal courts vary in how they apply the wil fulness analysis in Screws. The U.S. Court of
Appeals for the Fifth Circuit has held that “wil fully” means “that the act was committed voluntarily and
purposely with the specific intent to do something the law forbids. That is to say, with a bad purpose
either to disobey or to disregard the law.” By contrast, the U.S. Court of Appeals for the Third Circuit,
while remarking that “Screws is not a model of clarity,” upheld a jury instruction stating both that “an act
is done wil fully if it is done voluntarily and intentional y, and with a specific intent to do something the
law forbids,” and that the jury could “find that a defendant acted with the required specific intent even if
you find that he had no real familiarity with the Constitution or with the particular constitutional right
involved.” Overal , however, the Supreme Court’s interpretation of the wil fulness requirement has
resulted in what some view as a significant hurdle to bringing Section 242 claims.
Considerations for Congress
Several recent proposals before Congress would amend Section 242, with some proposals seeking to alter
the statute’s mental state requirement and others seeking to criminalize certain practices by law
enforcement officers. With respect to the mental state requirement, even before recent cal s for police
reform, some commentators advocated altering the specific intent requirement for Section 242 announced
in Screws. Section 101 of the Justice in Policing Act of 2020 would do so, amending Section 242 by
striking the requirement that an offense be committed “wil fully” and instead requiring that it be
committed “knowingly or with reckless disregard.”
With respect to deterring specific police practices, several recent proposals would seek to limit the use of
chokeholds and similar maneuvers. For example, the Eric Garner Excessive Use of Force Prevention Act
of 2019 and a Senate counterpart introduced in June 2020 would amend Section 242 to provide explicitly
that “the application of any pressure to the throat or windpipe which may prevent or hinder breathing or
reduce intake of air is a punishment, pain, or penalty” that may not be imposed by reason of race.

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Likewise, section 363 of the Justice in Policing Act would provide that “the application of any pressure
to the throat or windpipe, use of maneuvers that restrict blood or oxygen flow to the brain, or carotid
artery restraints which prevent or hinder breathing or reduce intake of air” constitutes a “punishment,
pain, or penalty” under Section 242.
More broadly, the Justice in Policing Act would appropriate $25,000,000 for DOJ enforcement of Section
242 and a related statute, 34 U.S.C. § 12601, which al ows DOJ to bring civil suits against law
enforcement agencies that engage in a pattern or practice of unconstitutional behavior.
Amendments to Section 242 may raise new legal questions. For instance, if an amendment to the statute
sought to alter the scope of “rights, privileges, or immunities secured or protected by the Constitution or
laws of the United States,” chal enges could arise asserting that the amendment exceeded Congress’s
authority. Amendments such as those related to chokeholds discussed above—which would declare that
specific conduct is a “punishment, pain, or penalty” that may not be applied “by reason of” race—may
raise fewer constitutional concerns if viewed as simply creating an enforcement mechanism against a
specific violation of a constitutional right. If legislation were understood to go beyond that and to attempt
to create prophylactic measures to prevent violations of the Constitution, the Supreme Court has held that
Congress would need to show the legislation was a congruent and proportional response to a history and
pattern of past constitutional violations by the states.
In addition, an amendment to Section 242’s mental state requirement might revive the questions about
vagueness and notice that the Supreme Court addressed in Screws. It appears Congress may have some
ability to act in this area—in construing the wil fulness requirement, the Screws plurality suggested, “If
Congress desires to give the Act wider scope, it may find ways of doing so.” However, Congress may
need to examine whether any revision of Section 242’s mental state requirement provides potential
defendants with clear notice of what conduct violates the statute.

Author Information

Joanna R. Lampe

Legislative Attorney

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