Police Reform and the 116th Congress: Selected Legal Issues

Police Reform and the 116th Congress: Selected Legal Issues

Police Reform and the 116th Congress:
September 16, 2020
Selected Legal Issues
April J. Anderson
Nationwide protests during the spring and summer of 2020 related to police use of force have
Legislative Attorney
prompted calls for increased congressional regulation of federal, state, and local law

enforcement. There are an array of legal issues related to federal regulation of law enforcement,
Joanna R. Lampe
including the scope of Congress’s constitutional authority to legislate on law enforcement reform,
Legislative Attorney
current federal regulation of law enforcement, and various questions raised by reform proposals

introduced in the 116th Congress.
Whitney K. Novak
Congress has extensive power to regulate federal law enforcement. However, federalism
Legislative Attorney
principles embodied in the Constitution place limits on Congress’s power to regulate state and

local police—an issue that the Constitution generally entrusts to the states. Congress, however,
possesses some authority to regulate state and local law enforcement. Two primary tools

Congress may use to act in this area are statutes designed to enforce the protections of the
Fourteenth Amendment and legislation requiring states to take specified action in exchange for federal funds disbursed under
the Spending Clause.
Legislating within the scope of its enumerated powers, Congress has enacted multiple statutes that regulate federal, state, and
local law enforcement. Key existing legal authorities related to federal regulation of law enforcement include Department of
Justice (DOJ) civil enforcement against patterns and practices of unconstitutional policing, laws imposing civil and criminal
liability for officer misconduct, and grant conditions designed to spur state and local compliance with federal policies.
Federal courts have supplemented these statutory authorities with certain judicially created doctrines defining the contours of
liability for police misconduct.
Yet even before the high-profile events of spring and summer 2020, commentators and legislators had suggested numerous
avenues for congressional reform and oversight of federal, state, and local law enforcement, and recent events have prompted
additional proposals in this area. Comprehensive proposals introduced in the 116th Congress include the Just and Unifying
Solutions To Invigorate Communities Everywhere (JUSTICE) Act of 2020 and the George Floyd Justice in Policing Act of
2020. Both of these proposals would incorporate and build on numerous prior legislative proposals, seeking to impose
comprehensive reforms on federal, state, and local policing. The two bills address certain common issues; however, even
when they tackle similar issues, they often take different approaches. As a general matter, the Justice in Policing Act would
more often impose direct restrictions on federal law enforcement and invoke Congress’s Spending Clause power to require
federal funding recipients to enact laws placing restrictions on state and local law enforcement. By contrast, the JUSTICE
Act would focus more on non-binding measures, including funding voluntary initiatives by state and local law enforcement
and gathering data on various law enforcement practices.
In addition to these comprehensive proposals, specific issues related to police reform have attracted significant attention from
commentators and legislators in recent years. Recently introduced legislation seeks reform on issues such as qualified
immunity, criminal liability, no-knock warrants, law enforcement identification, racial profiling, and limitations on military -
grade equipment.
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Contents
Constitutional Authorities for Congressional Action on Police Reform .................................... 1
Federalism General y ................................................................................................. 1
Spending Power and Regulating Law Enforcement ......................................................... 2
Section 5 of the Fourteenth Amendment and Regulating Law Enforcement ........................ 4
Current Federal Regulation of Law Enforcement ................................................................. 6
DOJ Civil Enforcement .............................................................................................. 6
Section 12601’s Requirements and Procedures ......................................................... 6
Constitutional Violations and Section 12601 ............................................................. 7
Section 12601 Remedies and Consent Decrees.......................................................... 9
Prosecutorial Discretion and DOJ’s Enforcement History ......................................... 10
DOJ Criminal Enforcement ....................................................................................... 11
Acting Under Color of Law ................................................................................. 12
Deprivation of Rights.......................................................................................... 13
Differential Punishment....................................................................................... 14
Willfulness Requirement ..................................................................................... 14
Private Rights of Action: Civil Liability for Law Enforcement Officers............................ 16
Section 1983...................................................................................................... 16
The Bivens Doctrine ........................................................................................... 17
The Federal Tort Claims Act ................................................................................ 19
Qualified Immunity ............................................................................................ 20
Grant Conditions and Data Collection......................................................................... 25
Considerations for Congress ........................................................................................... 26
Comprehensive Proposals ......................................................................................... 27
Police Reform Proposals—Selected Legal Topics ......................................................... 30
Qualified Immunity ............................................................................................ 30
Criminal Liability............................................................................................... 31
No-Knock Warrants ............................................................................................ 32
Law Enforcement Identification............................................................................ 34
Racial Profiling .................................................................................................. 34
Limitations on Military-Grade Equipment .............................................................. 35
Grants and Conditions on Federal Funds ................................................................ 35

Contacts
Author Information ....................................................................................................... 36

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Police Reform and the 116th Congress: Selected Legal Issues

ationwide protests during the spring and summer of 2020 related to police use of force
have prompted cal s for increased congressional regulation of federal, state, and local law
N enforcement.1 While the regulation of state and municipal law enforcement is an area that
the Constitution general y entrusts to the states, Congress possesses some authority and has
exercised that authority to regulate local law enforcement matters. Congress has done this
primarily through statutes designed to enforce the protections of the Fourteenth Amendment and
legislation requiring states to take specified action in exchange for federal funds disbursed under
the Spending Clause.2
This report provides an overview of legal issues related to federal regulation of law enforcement
by first discussing Congress’s constitutional authority to regulate law enforcement agencies and
officers. The report then summarizes current federal law related to police regulation and
oversight, including enforcement by the U.S. Department of Justice and laws that impose criminal
and civil liability for unlawful conduct by government actors, such as law enforcement officers.
Final y, the report concludes by discussing recent legislative proposals related to police reform
and relevant considerations for Congress.
Constitutional Authorities for Congressional Action
on Police Reform
Federal regulation of law enforcement raises several constitutional considerations. While
Congress may have plenary authority to regulate federal law enforcement officers and agencies,3
federalism principles within the Constitution place limits on Congress’s power to regulate local
police—an issue that the Constitution general y entrusts to the states.4 Despite these limits,
Congress possesses some authority to legislate on matters involving state and local law
enforcement, primarily through its enumerated powers under the Fourteenth Amendment and the
Spending Clause.
Federalism Generally
The Constitution establishes a “system of dual sovereignty between the States and the Federal
Government.”5 Under the Tenth Amendment, “[t]he powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.”6 Thus, states general y have broad authority to enact legislation, including laws
regulating state and local law enforcement.7 In contrast, Congress may only enact legislation
under specific powers enumerated in the Constitution and cannot use even those enumerated
powers to intrude impermissibly on the sovereign powers of the states.8 In this vein, the Supreme

1 Eliott C. McLaughlin, How George Floyd's Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down,
CNN (Aug. 9, 2020) https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html.
2 See, e.g., 42 U.S.C. § 1983; 34 U.S.C. § 60105.
3 See CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview, by Andrew
Nolan (March 11, 2019); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500, (2010) (noting,
“Congress has plenary control over the salary, duties, and even existence of executive offices.”).
4 See Bond v. United States, 572 U.S. 844, 854 (2014).
5 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).
6 U.S. CONST. amend. X.
7 See Bond, 572 U.S. at 854.
8 Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S.Ct. 1461 , 1467 (2018) (“The Constitution confers on Congress not
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Court has recognized that there are certain subjects that are largely of local concern where states
“historical y have been sovereign,” such as issues related to the family, crime, and education.9
Because of these principles, the Supreme Court has recognized various limitations on Congress’s
power to legislate in areas that fal within a state’s purview, observing that congressional power is
“subject to outer limits,” and that Congress must take care not to “effectual y obliterate the
distinction between what is national and what is local.”10 In addition, under the anti-
commandeering doctrine, Congress is prohibited from passing laws requiring states or localities
to adopt or enforce federal policies.11 Although these principles constrain Congress’s power,
Congress can rely on its enumerated powers either to regulate directly when an issue raises both
local and federal concerns, or to regulate indirectly in areas Congress could not otherwise reach.12
The spending power and Section 5 of the Fourteenth Amendment are two of the most relevant
authorities that Congress has used in the past to address local law enforcement issues.
Spending Power and Regulating Law Enforcement
The Spending Clause empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United
States.”13 The Supreme Court has held that incident to the spending power, Congress may further
its policy objectives by attaching conditions on the receipt of federal funds.14 These conditions
often involve compliance with statutory or administrative directives and can apply to any entity
receiving federal funds, including states and localities. In South Dakota v. Dole, for example, the
Supreme Court upheld as a valid exercise of Congress’s spending power a statute that conditioned
the grant of federal highway funds to any state upon that state prohibiting the purchase or
possession of alcohol by individuals less than 21 years old.15
There are four limitations on Congress’s authority to attach conditions to federal funds.16 First, a
funding condition must be “in pursuit of the general welfare.”17 However, courts afford Congress
substantial deference in determining what expenditures are “intended to serve general public
purposes.”18 Second, if Congress intends to place conditions on federal funds, it must do so
“unambiguously” so that states can knowingly choose whether or not to accept the funds.19 Third,
conditions on federal funding must be related or “germane” to “the federal interest in particular

plenary legislative power but only certain enumerated powers.”); United States v. Morrison, 529 U.S. 5 98, 607 (2000)
(“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”).
9 United States v. Lopez, 514 U.S. 549, 564 (1995).
10 Id. at 557.
11 New York v. United States, 505 U.S. 144, 188 (1992).
12 South Dakota v. Dole, 483 U.S. 203, 207 (1987) (“[O]bjectives not thought to be within Article I’s enumerated
legislative fields . . . may nevertheless be attained through the use of the spending power and the conditional grant of
federal funds.”) (internal citations and quotations omitted).
13 U.S. CONST. art. I, §8, cl. 1.
14 Dole, 483 U.S. at 206.
15 Id. at 211–12.
16 See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by
Andrew Nolan and Kevin M. Lewis, at 28-35 (Sept. 27, 2018).
17 Dole, 483 U.S. at 207.
18 Id.
19 Id.
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Police Reform and the 116th Congress: Selected Legal Issues

national projects or programs.”20 Fourth, other constitutional provisions may bar the conditions
placed on a grant of federal funds. For instance, Congress may not induce funding recipients to
take unconstitutional actions, such as by conditioning a monetary grant on “discriminatory state
action or the infliction of cruel and unusual punishment.”21 Relatedly, conditions on federal
funding are considered unconstitutional when they become coercive to the point that “pressure
turns into compulsion” or commandeering.22 For example, in National Federation of Independent
Business (NFIB) v. Sebelius, the Supreme Court held that a provision in the Affordable Care Act
that withheld al Medicaid grants from any state that refused to accept expanded Medicaid
funding was unconstitutional y coercive because it threatened to terminate “significant
independent grants” that had already been provided to the states.23
Courts have rarely used the foregoing spending power limitations to invalidate conditions placed
on the receipt of federal funds.24 NFIB remains the only instance in the modern era of the
Supreme Court invalidating an exercise of the congressional spending power.25 Post-NFIB
Spending Clause chal enges have largely been unsuccessful in the lower courts.26 As a result, in
practice Congress has faced relatively few limitations on its use of the spending power to impose
conditions on federal funds to further its policy objectives. Thus, it appears that under the
authority of the Spending Clause of the U.S. Constitution, Congress has significant ability to
impose conditions on federal grant awards to state and local governments as a way to influence
state and local law enforcement policy.27

20 Id.
21 Id. at 210.
22 Id. at 211.
23 National Federation of Independent Business v. Sebelius, 567 U.S. 519, 580 (2012).
24 Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. CHI. L. REV. 575, 599 (2013) (observing
that the Supreme Court has generally “ declined to enforce ‘direct’ limits on the Spending Power”); see also Jonathan
H. Adler & Nathaniel Stewart , Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and
Conditional Spending After NFIB v. Sebelius, 43 ECOLOGY L.Q. 671, 700 (2016); (arguing that the “ NFIB plurality did
not open a new line of attack against spending power statutes . . . ”).
25 Andrew B. Coan, Judicial Capacity and the Conditional Spending Paradox, 2013 WIS. L. REV. 339, 346 (2013)
(“Prior to NFIB, Butler was the only time the Supreme Court ever invalidated an exercise of the congressional spending
power.”).
26 See, e.g., Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 175 (D.C. Cir. 2015) (rejecting the plaintiff’s
position that the “Clean Air Act’s sanctions for noncompliant states impose such a steep price that State officials
effectively have no choice but to comply”); T exas v. EPA, 726 F.3d 180, 197 (D.C. Cir. 2013) (rejecting the argument
that the challenged federal law was of the “same magnitude and nature as the Medicaid expansion provision [at issue in
NFIB] that would strip over 10 percent of a State's overall budget”) (internal citations and quotations omitted);
T ennessee v. United States Dep’t of State, 329 F. Supp. 3d 597, 626 -29 (W.D. T enn. 2018) (rejecting the argument that
the threatened loss of federal Medicaid funding to coerce support of the federal refugee program was c omparable to the
program at issue in NFIB).
27 See W. Paul Koenig, Does Congress Abuse Its Spending Clause Power by Attaching Conditions on the Receipt of
Federal Law Enforcement Funds to a State’s Compliance with ’Megan’s Law’?, T HE JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY, vol. 88, no. 2 (Winter, 1998), pp. 740 -741; Kami Chavis Simmons, Cooperative Federalism and Police
Reform : Using Congressional Spending Power to Prom ote Police Accountability , ALABAMA LAW REVIEW, vol. 62, no.
2 (2011), p. 351. Scholars debate the merits of this approach toward federalism. See Kami Chavis Simmons,
Cooperative Federalism and Police Reform : Using Congressional Spending Power to Prom ote Police Accountability ,
ALABAMA LAW REVIEW, vol. 62, no. 2 (2011), p. 357 (suggesting that t he use of federal grants to state and local law
enforcement agencies can encourage a cooperative federalism relationship that entails federal-state collaboration and
allow states some flexibility in implementing federal standards while preserving state and local abilities to enhance
police accountability); John Kincaid, From Cooperative to Coercive Federalism , ANNALS OF THE AMERICAN ACADEMY
OF P OLITICAL AND SOCIAL SCIENCE, vol. 509 (May, 1990), p. 141 (describing cooperat ive federalism as “ a pragmat ic
middle ground between reform and reaction that would not destroy the states but would still lower their salience from
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Section 5 of the Fourteenth Amendment and Regulating
Law Enforcement
The Fourteenth Amendment, in relevant part, provides that no state shal “deprive any person of
life, liberty, or property, without due process of law” or “deny to any person within its jurisdiction
the equal protection of the laws.”28 The Supreme Court has interpreted the Fourteenth
Amendment’s Due Process Clause as applying to state actors nearly al the rights found in the Bil
of Rights, including those that pertain to criminal procedure and regulate the conduct of the
police.29 In turn, Section 5 of the Fourteenth Amendment grants Congress the power to enforce
the Amendment through “appropriate legislation.”30
Section 5’s “positive grant of legislative power” authorizes Congress to both deter and remedy
constitutional violations; and in doing so, Congress may prohibit otherwise c onstitutional conduct
that fal s within “legislative spheres of autonomy previously reserved to the States.”31 The Section
5 enforcement power (and the comparable enforcement powers found in the Thirteenth32 and
Fifteenth33 Amendments) has been used to, for example, ban the use of literacy tests in state and
national elections34 and abolish “al badges and incidents of slavery” by banning racial
discrimination in the acquisition of real and personal property.35 Congress has also used its
Section 5 power to provide remedies for the deprivation of constitutional rights.36 For example,
42 U.S.C. § 1983 (Section 1983) provides a private cause of action for individuals claiming that
their constitutional rights were violated by state actors acting pursuant to state law. And 18 U.S.C.
§ 242 (Section 242)—which is a product of Congress’s Section 5 power37—imposes criminal
liability on state actors who deprive individuals of their constitutional rights.
While Congress’s Section 5 enforcement power is broad, it is not unlimited.38 Section 5 al ows
Congress to directly enforce constitutional rights through laws like Section 1983 and Section 242.
However it does not al ow Congress to supplement those rights through prophylactic legislation
that regulates state and local matters without evidence of a history and pattern of past
constitutional violations by the states.39 And, according to the Supreme Court, when Congress
exercises its Section 5 authority to supplement a constitutional protection, its response must be
congruent and proportional to a demonstrated harm.40 Congress may justify the need for Section 5
legislation by establishing a legislative record that shows “evidence . . . of a constitutional

constitutionally coordinate polities to more congenial laboratories of democracy and administrators of national
policy.”).
28 U.S. CONST. amend. XIV.
29 T imbs v. Indiana, 139 S.Ct. 682, 687 (2019).
30 U.S. CONST. amend. XIV, § 8.
31 City of Boerne v. Flores, 521 US 507, 517–18 (1997).
32 U.S. CONST. amend. XII, § 2.
33 Id. amend. XV, § 3.
34 Oregon v. Mitchell, 400 U.S. 112, 118 (1970).
35 Jones v. Alfred H. Mayer Co., 392 US 409, 439 (1968).
36 Monroe v. Pape, 365 U.S. 167, 171 (1961).
37 Screws v. United States, 325 U.S. 91, 98 (1945).
38 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
39 Northwest Austin Mun. Utility Dist. v. Holder, 557 US 193 , 225 (2009).
40 City of Boerne, 521 U.S. at 510.
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wrong.”41 For example, the Supreme Court held in City of Boerne v. Flores that Congress
exceeded its Section 5 authority in enacting portions of the Religious Freedom Restoration Act
(RFRA). RFRA, in relevant part, supplanted normal First Amendment standards to impose a
heightened standard of review for state government actions that substantial y burdened a person’s
religious exercise. But because, according to the Supreme Court, Congress had failed to establish
a widespread pattern of religious discrimination by the states,42 RFRA could not be justified as a
remedial measure designed to prevent unconstitutional conduct and was outside of Congress’s
power over the states.43 As a result, the Court struck down the law to the extent it applied to the
states.44
As outlined in this case law, the scope of Congress’s Section 5 power hinges in part on the scope
of the constitutional right that a given federal statute aims to protect. With respect to regulating
state and local police forces, one constitutional right that may be particularly relevant to
Congress’s use of its Section 5 power is the Fourth Amendment, which prohibits unreasonable
searches and seizures by the government.45 The Fourth Amendment applies to many situations
involving law enforcement, including when police stop an individual on the street for
questioning,46 when police conduct traffic stops,47 or when police make an arrest.48 Police violate
the Fourth Amendment, for example, if they use excessive force during an investigatory stop or
arrest.49
According to the Supreme Court, the force used by law enforcement during an investigatory stop
or arrest violates the Constitution when it is unreasonable considering the facts and circumstances
of the case.50 This analysis requires a careful balancing of “the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the importance of the governmental
interests al eged to justify the intrusion.”51 For example, the Supreme Court has held that police
use of deadly force against a fleeing suspect who poses no immediate safety threat is
unreasonable in violation of the Fourth Amendment.52 Determining whether an act of force is
excessive in violation of the constitution, however, requires a fact-specific analysis—a certain act
may be reasonable under some circumstances while, in a different case, the same act may amount
to excessive force. For example, some courts have ruled that police use of a chokehold is
objectively unreasonable when used against individuals who are already under restraint and not a
danger to others.53 In other circumstances, courts have upheld police use of a chokehold as

41 Allen v. Cooper, 140 S.Ct. 994, 1004 (2020).
42 City of Boerne, 521 U.S. at 532.
43 Id.
44 Id. at 536. RFRA’s provisions however, still apply to federal government action.
45 U.S. CONST. amend. IV.
46 T erry v. Ohio, 392 U.S. 1, 9 (1968).
47 Rodriguez v. United States, 575 U.S. 348, 354 (2015).
48 United States v. Watson, 423 U.S. 411, 417 (1976).
49 Graham v. Connor, 490 U.S. 386, 394 (1989); CRS Legal Sidebar LSB10516, Police Use of Force: Overview and
Considerations for Congress, by Michael A. Foster (July 10, 2020).
50 Id. at 396.
51 T ennessee v. Garner, 471 U.S. 1, 7–8 (1985).
52 Id. at 11.
53 Coley v. Lucas County, Ohio, 799 F. 3d 530, 540 (6th Cir. 2015).
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reasonable in instances where an individual was unrestrained and continued to pose a threat of
serious harm.54
Current Federal Regulation of Law Enforcement
Legislating within the scope of the enumerated powers discussed above,55 Congress has enacted
multiple statutes that regulate federal, state, and local law enforcement.56 Federal courts have
supplemented those statutory authorities with certain judicial y created doctrines defining the
contours of liability for police misconduct.57 The executive branch also plays a role in federal
regulation of law enforcement, including through federal Department of Justice (DOJ) civil and
criminal investigations of police misconduct58 and implementation of federal grant programs and
data collection initiatives.59 This section presents several existing legal authorities related to
federal regulation of law enforcement, including DOJ civil enforcement against patterns and
practices of unconstitutional policing, individual criminal and civil liability for officer
misconduct, government liability for law enforcement misconduct, and grant conditions designed
to spur state and local compliance with federal policies.
DOJ Civil Enforcement
A primary method of enforcing the various constitutional standards governing policing is through
Section 12601 of the Violent Crime Control and Law Enforcement Act of 1994, which enables
the DOJ to sue state and local police departments to reform systemic civil rights violations.60
Congress passed the statute in the wake of widely circulated bystander video footage of Los
Angeles police beating, clubbing, and stomping on black motorist Rodney King.61 Subsequently,
Section 12601 has served as a primary tool for the federal government to promote compliance
with the Constitution by state and local law enforcement agencies. This subsection discusses the
Section’s procedures, relevant constitutional considerations, and DOJ’s enforcement actions in
recent years.
Section 12601’s Requirements and Procedures
Section 12601 authorizes the U.S. Attorney General to sue local law enforcement agencies for
“engag[ing] in a pattern or practice of conduct” that “deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States.”62 The statute

54 Williams v. City of Cleveland, Miss., 736 F. 3d 684, 688 (4th Cir. 2013).
55 See supra “Constitutional Authorities for Congressional Action on Police Reform.”
56 See infra “DOJ Civil Enforcement ,” “Section 1983,” “The Federal T ort Claims Act .”
57 See infra “T he Bivens Doctrine,” “Qualified Immunity.”
58 See infra “DOJ Civil Enforcement .”
59 See infra “Grant Conditions and Data Collection.”
60 34 U.S.C. § 12601. T he provision was originally codified as 42 U.S.C. § 14141.
61 Koon v. United States, 518 U.S. 81, 87 (1996); Stephen Rushin, Federal Enforcement of Police Reform , 82
FORDHAM L. REV. 3189, 3191 (2014); Chiraag Bains and Dana Mulhauser, The Trum p Adm inistration Abandoned a
Proven Way to Reduce Police Violence, WASH. POST (June 9, 2020), at
https://www.washingtonpost.com/outlook/2020/06/09/trump -pattern-or-practice/ (last visited Sept. 10, 2020). T he
Rodney King video footage is at https://abcnews.go.com/Archives/video/march -1991-rodney-king-videotape-9758031
(last visited Sept. 10, 2020).
62 34 U.S.C. § 12601(a).
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provides no private right of action, meaning that individuals cannot sue to enforce it.63 Moreover,
DOJ cannot sue for money and instead can only seek injunctive relief under the statute.64 Section
12601 cases, the DOJ explains, are “geared toward changing polices, practices, and culture across
a law enforcement agency.”65 The term “pattern or practice,” which is also used in other statutes
authorizing the Attorney General’s enforcement, requires “more than an isolated, sporadic
incident;” wrongdoing must be “repeated, routine, or of a generalized nature.”66
Constitutional Violations and Section 12601
First, Fourth, and Fifth Amendment Violations
Perhaps the most frequent focus of Section 12601 cases is a potential pattern of Fourth
Amendment violations, which may include improper searches, seizures, detentions, and use of
force. As noted above, the Supreme Court has construed the Fourth Amendment to require that
law enforcement searches, seizures, arrests, and uses of force be “reasonable.”67 And “law
enforcement officers must satisfy escalating legal standards of ‘reasonableness’ for each level of
intrusion upon a person—stop, search, seizure, and arrest.”68 For instance, an officer’s decision to
stop an individual must be supported by “reasonable suspicion.”69 A mere “hunch” or
inarticulable suspicion does not meet this standard.70 Systemic violations of these requirements
justify a Section 12601 action.
For example, investigation of the Warren Police Department in Ohio revealed a pattern of
improper strip and body cavity searches, while in Newark, New Jersey, and Maricopa County,
Arizona, investigators discovered widespread theft of property by police officers.71 Specifical y,
Maricopa County deputies routinely seized smal items as “trophies.”72 In Baltimore, Maryland,
and New Orleans, Louisiana, DOJ identified patterns of unlawful stops.73 DOJ also brought to
light excessive use of force in the Yonkers, New York, Police Department, the Seattle,
Washington, Police Department, the Puerto Rico Police Department, and others.74
While the foregoing investigations focused on patterns or practices of Fourth Amendment
violations, any constitutional violations can justify a Section 12601 case. Some misconduct
uncovered in Section 12601 investigations has included al eged Fifth Amendment and due

63 Id. § 12601(b). Private parties may sue under 42 U.S.C. § 1983, discussed infra.
64 See Bains and Mulhauser, supra note 61.
65 U.S. DEP’T OF JUSTICE, THE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE POLICE REFORM WORK: 1994-PRESENT,
at 20 (2017), https://www.justice.gov/crt/file/922421/download.
66 United States v. Johnson, 122 F. Supp. 3d 272, 348 (M.D.N.C. 2015).
67 T erry v. Ohio, 392 U.S. 1, 10, 30 (1968).
68 U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE NEWARK POLICE DEPARTMENT, at 7 (July 22, 2014),
https://www.justice.gov/sites/default/files/crt/legacy/2014/07/22/newark_findings_7 -22-14.pdf#page=10.
69 United States v. Powell, 666 F.3d 180, 185–86 (4th Cir. 2011) (noting “reasonable suspicion is a particularized and
objective basis for suspecting” wrongdoing).
70 Floyd v. City of New York, 959 F. Supp. 2d 540, 567 (S.D.N.Y. 2013).
71 U.S. DEP’T OF JUSTICE, SPECIAL LITIGATION SECTION CASE SUMMARIES, https://www.justice.gov/crt/special-litigation-
section-case-summaries/download#WPD (last visited August 31, 2020).
72 Melendres v. Maricopa Cty., 897 F.3d 1217, 1220 (9th Cir. 2018), cert. denied sub nom ., Maricopa Cty., Arizona v.
de Jesus Ortega Melendres, 140 S. Ct. 96 (2019).
73 Special Litigation Section Case Summaries, supra, note 71.
74 Id.
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process violations, such as coerced confessions in the Vil e Platte Police Department and
Evangeline Parrish Sherriff’s Office of Louisiana.75 In settlements with the Puerto Rico Police
Department and the Baltimore Police Department, DOJ imposed measures to curb potential
patterns of First Amendment violations—officers’ retaliation for perceived insulting remarks and
attempts to stop bystanders from filming police with cel phone cameras.76 In another instance,
DOJ charged Colorado City, Arizona, and Hildale, Utah, police with a pattern of violating the
Establishment Clause for carrying out orders of fundamentalist Mormon leader Warren Jeffs.77
Equal Protection Violations
DOJ’s Section 12601 cases sometimes aim to remedy racial discrimination in violation of the
Equal Protection Clause of the Fourteenth Amendment, such as patterns and practices of racial
profiling.78 Departments may violate equal protection when they single people out for arrest or
search because of race or national origin.79 A person’s racial appearance, standing alone, is not
considered grounds for individualized suspicion.80 Moreover, police can violate equal protection
even if they can justify a search under the Fourth Amendment. Such is the case when police pull
over speeding Black drivers—the traffic violation justifies each stop as far as the Fourth
Amendment is concerned—but ignore White speeders.81
That said, under the case law, a law enforcement activity’s unintentional racial impact does not
violate equal protection standards.82 To make out a constitutional chal enge, “plaintiffs must show
that those responsible for the profiling did so ‘at least in part “because of,” not merely “in spite
of,” its adverse effects upon’ the profiled racial groups.”83 Such cases are hard to prove. To
determine whether a police department has engaged in il icit racial profiling, courts have looked

75 T HE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE POLICE REFORM WORK, supra note 65, at 47.
76 Special Litigation Section Case Summaries, supra note 71; U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE BALTIMORE
CITY POLICE DEPARTMENT 119 (Aug. 10, 2016), https://www.justice.gov/crt/file/883296/download.
77 Compl. at 3, United States v. T own of Colo. City, No. 3:12 -CV-8123-HRH, 2012 WL 12842256, at *2 (D. Ariz.
Nov. 29, 2012).Complaint available at
https://www.justice.gov/sites/default/files/crt/legacy/2012/07/18/coloradocity_complaint_6 -21-12.pdf#page=3.
78 U.S. CONST. amend. XIV; INVESTIGATION OF THE BALTIMORE CITY POLICE DEPARTMENT, supra note 76 at 47; U.S.
DEP ’T OF JUSTICE, INVESTIGATION OF THE NEW ORLEANS POLICE DEPARTMENT 59 (Mar. 16, 2011),
https://www.justice.gov/sites/default/files/crt/legacy/2011/03/17/nopd_report.pdf . T itle VI of the Civil Rights Act of
1964 also authorizes these suits for departments with federal funding. 42 U.S.C. § 2000d. DOJ has invoked T itle VI for
targeted enforcement and for underpolicing, for example, situations where police provided no translation services and
routinely failed to respond to calls seeking police assistance in a language other than English . INVESTIGATION OF THE
NEW ORLEANS POLICE DEPARTMENT, supra note 78, at xii. For further discussion of racial profiling, see CRS Legal
Sidebar LSB10524, Racial Profiling: Constitutional and Statutory Considerations for Congress, by April J. Anderson,
(July 24, 2020).
79 Melendres v. Arpaio, 989 F. Supp. 2d 822, 827 (D. Ariz. 2013), aff’d in part, vacated in part on other grounds, 784
F.3d 1254 (9th Cir. 2015).
80 Floyd v. City of New York, 959 F. Supp. 2d 540, 563 (S.D.N.Y. 2013).
81 Whren v. United States, 517 U.S. 806, 813 (1996).
82 T he DOJ may pursue disparate impact claims under T itle VI. In these cases, the DOJ need not show intentional
discrimination; it can identify practices that have a disproportionate effect because of race that is “ unintentional, but
avoidable.” INVESTIGATION OF THE NEWARK POLICE DEPARTMENT, supra note 68, at 17. T o prevail, the DOJ must
identify a police practice causing a disparate impact, and the police department may then defend the practice if the
department can show that said practice is necessary for proper law enforcement. Id. at 19. Because it is hard to prove
that officers or departments intended to discriminate, T itle VI can sometimes be invoked more easily against race-based
enforcement actions.
83 Floyd, 959 F. Supp. at 662.
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at metrics such as how often people of color are subjected to stops and searches relative to their
proportion of the population; whether searches frequently turn up contraband; and how often
stops lead to an arrest or charges.84 DOJ must general y compile a significant body of statistical
and anecdotal evidence to succeed in a racial profiling case.85
DOJ has uncovered equal protection violations related to racial and ethnic profiling in a number
of jurisdictions. DOJ found that the sheriff’s department in Maricopa County, Arizona, targeted
Hispanics by responding to complaints that al eged no criminal activity, but instead simply
reported people with “dark skin” congregating in an area or employees speaking Spanish at a
local business.86 Similarly, DOJ concluded that police in Suffolk County, New York, discouraged
Latinos from filing complaints and failed to investigate anti-Latino hate crimes. In Baltimore,
Maryland, Newark, New Jersey, and East Haven, Connecticut, DOJ imposed remedies for
patterns of racial y targeted traffic and pedestrian stops.87
Not al Equal Protection violations involve profiling. Discriminatory policing based on sex or
sexual orientation can also raise equal protection concerns.88 DOJ has found discrimination
because of sex in departments that underserve victims of sexual and domestic violence. For
instance, DOJ determined that New Orleans police consistently declined to investigate domestic
violence and rape because of stereotyped assumptions about female victims.89 In Puerto Rico,
similarly, DOJ found police disregarded sex-related crimes and domestic violence.90
Section 12601 Remedies and Consent Decrees
Where there is a pattern or practice of unconstitutional policing, Section 12601 authorizes
“appropriate equitable and declaratory relief to eliminate the pattern or practice.”91 Thus, unlike a
civil suit for monetary damages, Section 12601 requires a court to set rules to correct illegal
behavior going forward. The statute aims “to identify, remedy and even prevent substantive
violations.”92 Typical y, DOJ and the target jurisdiction negotiate a court-approved set lement—a
consent decree—outlining steps for reform.93 If the parties cannot agree on appropriate measures,
a court may try the case and impose reforms, but Section 12601 cases rarely go to trial.94 Most
consent decrees set up an independent monitoring team, appointed by the court, to review

84 INVESTIGATION OF THE BALTIMORE CITY POLICE DEP’T, supra note 76, at 4; INVESTIGATION OF THE NEWARK POLICE
DEP ’T, supra note 68, at 2, 16-21.
85 See Id.; Melendres v. Arpaio, 989 F. Supp. 2d 822, 827 (D. Ariz. 2013), adhered to, No. CV-07-02513-PHX-GMS,
2013 WL 5498218 (D. Ariz. Oct. 2, 2013), aff’d in part, vacated in part, 784 F.3d 1254 (9th Cir. 2015), and aff’d, 784
F.3d 1254 (9th Cir. 2015), https://www.justice.gov/crt/file/890351/download.
86 SPECIAL LITIGATION SECTION CASE SUMMARIES, supra note 71; U.S. Dep’t of Justice, Letter from Thomas E. Perez,
Assistant Attorney General, Departm ent of Justice, to Bill Montgom ery, County Attorney, Maricopa County 3, (Dec.
15, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_findletter_12 -15-11.pdf.
87 SPECIAL LITIGATION SECTION CASE SUMMARIES, supra note 71.
88 INVESTIGATION OF THE NEW ORLEANS POLICE DEP’T, supra note 78, at 32, 34.
89 Id. at 32, 34, 43-51.
90 SPECIAL LITIGATION SECTION CASE SUMMARIES, supra note 71. T he DOJ has also sought remedies for police
discrimination based on sexual orientation. T HE CIVIL RIGHTS DIV.’S PATTERN AND PRACTICE POLICE REFORM WORK,
supra note 65, at 7.
91 34 U.S.C. § 12601(b).
92 United States v. City of Columbus, No. CIV.A.2:99CV1097, 2000 WL 1133166, at *9 (S.D. Ohio Aug. 3, 2000),
https://www.clearinghouse.net/chDocs/public/PN-OH-0001-0046.pdf.
93 T HE CIVIL RIGHTS DIV.’S PATTERN AND PRACTICE POLICE REFORM WORK, supra note 65, at 22.
94 Id. at 18.
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progress and issue reports. For agencies with only minor problems, however, DOJ may issue only
a court- enforceable “memorandum of agreement” or a “technical assistance” letter of voluntary
recommendations.95
In designing its settlement orders, DOJ relies on local leaders, experts, and national y recognized
best practices.96 Typical provisions include enhanced training, peer intervention initiatives,
improved officer-to-supervisor ratios, hiring programs, increased use of equipment such as video
cameras, and revisions to agency handbooks and policies.97
As a police department implements changes, the monitoring team may track metrics like racial
patterns in stops, documented grounds for suspicion supporting searches, and ratios of arrests to
charged offenses.98 The monitoring process can last years—two years is a common goal—ending
only with court approval.99 If a jurisdiction fails to comply, the court may intervene and even find
officials in contempt.100
Prosecutorial Discretion and DOJ’s Enforcement History
As with other law enforcement matters, DOJ may use its discretion in deciding whether to pursue
litigation, even if facts would support a case.101 Since 2017, DOJ has reported one new Section
12601 matter, an investigation of Springfield, Massachusetts, Police Department’s Narcotics
Bureau.102 Commenters vary in how they quantify Section 12601 enforcement in prior
Administrations, employing different ways of assessing DOJ’s activity and dating a case’s
beginning.103 By one observer’s count, DOJ opened 22 investigations during the Clinton
Administration and 21 during the George W. Bush Administration.104 Another, more recent
commentator cites 20 new investigations during the Obama Administration, with 10 during the

95 Id. at 21; See, e.g., Letter from Shanetta Y. Cutlar, Special Litigation Section, U.S. Dept. of Justice, to Roosevelt F.
Dorn, Mayor, City of Inglewood, Ca. (Dec. 28, 2009),
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/inglewood_pd_Jail_findlet_12 -28-09.pdf.
96 T HE CIVIL RIGHTS DIV.’S PATTERN AND PRACTICE POLICE REFORM WORK, supra note 65, at 20.
97 Id. at 27-28, 31-32;
98 Id. at 24.
99 Id. at 35.
100 Megan Cassidy, Judge strips Arpaio of some internal affairs oversight, T HE ARIZONA REPUBLIC (July 21, 2016),
https://www.usatoday.com/story/news/nation-now/2016/07/21/judge-strips-arpaio-internal-affairs-oversight/87412472/
(last visited Sept. 10, 2020).
101 Heckler v. Chaney, 470 U.S. 821, 834 (1985).
102 U.S. DEPT. OF JUSTICE, INVESTIGATION OF THE SPRINGFIELD, MASSACHUSETTS POLICE DEPARTMENT’S NARCOTICS
BUREAU (July 8, 2020), https://www.justice.gov/crt/case-document/file/1292961/download; see also SPECIAL
LITIGATION SECTION CASE SUMMARIES, supra note 71; T ranscript of Attorney General William Barr on ‘Face the
Nation,’ (June 7, 2020), https://www.cbsnews.com/news/bill-barr-george-floyd-protests-blm-face-the-nation-
transcript/ (last visited Sept. 10, 2020) (noting the DOJ has opened one new investigation under T rump).
103 Joshua M. Chanin, Negotiated Justice? The Legal, Administrative, and Policy Implications of ‘Pattern or Practice’
Police Misconduct Reform , at 196 (June 6, 2011) (unpublished Ph. D. dissertation, American University),
https://www.ncjrs.gov/pdffiles1/nij/grants/237957.pdf#page=212 .
104 Rushin supra note 61, at 3232.
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George W. Bush Administration.105 DOJ’s website lists some 23 matters commenced between
2009 and 2016.106
While the Trump Administration may have different enforcement priorities than prior
Administrations in forgoing formal investigations, Section 12601 cases were never frequent. As
of 2017, DOJ reported that it had opened 69 formal investigations in the statute’s history.107
Historical y, DOJ has initiated about three pattern-or-practice investigations a year, with about
one in three of the investigations leading to significant structural reform through a detailed
consent decree and monitoring.108 To help put this number in perspective, there are about 18,000
law enforcement agencies in the nation.109
DOJ Criminal Enforcement
In addition to civil pattern-or-practice enforcement, DOJ may also bring criminal charges based
on law enforcement misconduct. 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.
Section 242 originates from section 2 of the Civil Rights Act of 1866.110 Congress amended and
broadened the statute in 1874 pursuant to its constitutional authority to enforce the protections of
the Fourteenth Amendment through “appropriate legislation.”111 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 [.]112
A simple violation of the statute is punishable by a fine and/or up to a year in prison.113 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.114

105 Connor Maxwell & Danyelle Solomon, Expanding the Authority of State Attorneys General to Combat Police
Misconduct, CENTER FOR AMERICAN PROGRESS (December 12, 2018),
https://cdn.americanprogress.org/content/uploads/2018/12/11084336/PoliceAccountability_.pdf?_ga=2.188590440.192
2505801.1598912009-1173309197.1598912009.
106 Special Litigation Section Case Summaries, supra note 71.
107 T HE CIVIL RIGHTS DIV.’S PATTERN AND PRACTICE POLICE REFORM WORK, supra, note 65, at 8.
108 Rushin, supra note 61 at 3193, 3230.
109 Id. at 3230.
110 14 Stat. 27-30, § 2 (39th Cong. 1866).
111 See United States v. Price, 383 U.S. 787, 802-03 (1966).
112 18 U.S.C. § 242.
113 See id.
114 See id. While Section 242 provides for a death sentence in certain circumstances, the Constitution forbids death
sentences for non-homicide offenses. See Coker v. Georgia, 433 U.S. 584, 597 (1977).
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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[.]” 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.115
The U.S. Department of Justice (DOJ) enforces Sections 241 and 242 by bringing criminal
charges against individuals accused of violating the statutes.116 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.117 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. That statutory phrase originates
from the Reconstruction era, and variations of it appear in multiple federal hate crime and civil
rights statutes.118 As interpreted by the Supreme Court, a person acts under color of law when
they act with either actual or apparent federal, state, or local government authority.119 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 242.120 Government 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 example, because they abused their official position.121
Off-duty law enforcement officers may also be subject to Section 242 if they act or claim to act in
their official capacity.122 Moreover, a person need not actual y be a government employee or
official to act under color of law, as long as he or she participates in activity “attributable to the

115 18 U.S.C. § 241.
116 T he statutes provide no private right of enforcement, meaning that victims of official misconduct cannot sue under
Section 241 or 242. A victim of conduct that violates Section 242 may be able to bring a separate civil suit under 42
U.S.C. § 1983 or, for federal officers, under the Bivens doctrine. See Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). However, the doctrine of qualified immunity may limit officials’ liability. See infra “ Qualified Immunity”;
see also CRS Legal Sidebar LSB10492, Policing the Police: Qualified Im m unity and Considerations for Congress, by
Whitney K. Novak (July 25, 2020).
117 United States v. Lanier, 520 U.S. 259, 264 (1997).
118 See, e.g., 18 U.S.C. §§ 245, 249; 42 U.S.C. §§ 1981, 1983.
119 See Screws v. United States, 325 U.S. 91, 107 (1945); U.S. Dep’t of Justice, Civil Rights Division, Addressing
Police Misconduct Laws Enforced by the Departm ent of Justice, https://www.justice.gov/crt/addressing-police-
misconduct -laws-enforced-department -justice (last visited Sept. 10, 2020).
120 See Screws, 325 U.S. at 110.
121 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 killing was illegal under Georgia law. T he
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.” Screws, 325 U.S. at 111.
122 U.S. Dep’t of Justice, Civil Rights Division, Law Enforcement Misconduct, https://www.justice.gov/crt/law-
enforcement -misconduct (last visited Sept. 10, 2020).
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State.”123 However, a person acting purely in a private capacity is not subject to Section 242, even
if the person is a government employee.124
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.125
With regard to the “laws of the United States,” DOJ general y does not bring Section 242 charges
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 ordinary statutory violations;126 the
courts may be even less likely to impose criminal liability under statues that, standing alone, do
not expressly provide for any criminal penalties.127 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 above, 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 discussed above, Supreme Court 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.128 Absent such circumstances, however, it is 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.129 For example, DOJ has brought Section 242 charges based
on infringement of the right to vote,130 imposition of cruel and unusual punishment,131 and various
due process violations.132 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.133 In recent years, Sections 241 and 242 have formed

123 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. 383 U.S. 787, 794 (1966).
124 See, e.g., Screws, 325 U.S. at 111 (stating that “acts of [law enforcement] officers in the ambit of their personal
pursuits are plainly excluded”).
125 18 U.S.C. § 242.
126 See Blessing v. Freestone, 520 U.S. 329, 340-41 (1997); CRS Legal Sidebar LSB10320, Courts Split on Whether
Private Individuals Can Sue to Challenge States’ Medicaid Defunding Decisions: Considerations for Congress (Part I
of II), by Wen W. Shen (July 3, 2010).
127 See Callanan v. United States, 364 U. S. 587, 596 (1961) (explaining that the rule of lenity is used to resolve
statutory ambiguity in favor of a criminal defendant).
128 See supra “Section 5 of the Fourteenth Amendment and Regulating Law Enforcement.”
129 See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
130 See, e.g., United States v. Classic, 313 US 299, 307 (1941).
131 See, e.g., United States v. Barnes, 890 F.3d 910, 921 (10th Cir. 2018).
132 See, e.g., Screws v. United States, 325 U.S. 91, 107 (1945); United States v. Lanier, 520 U.S. 259, 261 (1997);
United States v. Delerme, 457 F.2d 156, 161 (3d Cir. 1972).
133 See, e.g., United States v. Johnstone, 107 F. 3d 200, 208 (3d Cir. 1997).
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the basis of police excessive force criminal cases134 and provided the legal basis for DOJ
investigations into several police kil ings across the country.135
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.136 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 motivation137—in this context, the motivation to impose a
different punishment “by reason of” the victim’s race or other covered characteristic.
Furthermore, as 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.”138 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
protected characteristics such as a person’s race.139
Willfulness Requirement
By its text, Section 242 applies only to violations that are committed “wil fully.”140 The Supreme
Court stringently construed the wil fulness standard in the 1945 case Screws v. United States.141
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.142 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.”143
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,

134 See, e.g., United States v. Bradley, 196 F.3d 762, 764 (7th Cir. 1999); United States v. Reese, 2 F.3d 870, 880 (9th
Cir. 1993).
135 See Paul Lewis, Federal Officials May Use Little-Known Civil Rights Statute in Police Shooting Cases, T HE
GUARDIAN (Dec. 24, 2014), http://www.theguardian.com/us-news/2014/dec/24/federal-review-michael-brown-eric-
garner-crawford-hamilton (last visit ed Sept. 10, 2020).
136 18 U.S.C. § 242.
137 See, e.g., United States v. Peterson, 509 F. 2d 408, 412 (D.C. Cir. 1974).
138 David Dante T routt, Screws, Koon, and Routine Aberrations: the Use of Fictional Narratives in Police Brutality
Prosecutions, 74 N.Y.U. L. REV. 18, 49 (2018) (quoting Victor Rotnem, Address Before the National Bar Association,
Chicago, Ill. (Dec. 4, 1944)).
139 See, e.g., United States v. Smart, 518 F. 3d 800, 804 n.1 (10th Cir. 2008).
140 18 U.S.C. § 242.
141 325 U.S. 91 (1945). T he main opinion in Screws was joined by only four justices, but binding opinions of the
Supreme Court have since adopted its analysis. See, e.g., United States v. Lanier, 520 U.S. 259, 267 (1997).
142 Screws, 325 U.S. at 94.
143 Id. at 105.
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the prosecution usually 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.144 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.145 In those circumstances, the
plurality observed, “[t]hose 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 due process of
law.”146 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 o f any constitutional
guarantee.147
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.”148 Such a defendant cannot assert a lack of notice because he “is
aware that what he does is precisely that which the statute forbids.”149 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.”150
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.”151 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.”152 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.153
Lower federal courts vary in how they apply the wil fulness analysis in Screws. The U.S. Court of
Appeals for the Fifth Circuit requires that a violation of Section 242 be “committed voluntarily

144 Id. at 96.
145 Id. at 95.
146 Id. at 97.
147 Id.
148 Id. at 103.
149 Id. at 104.
150 Id. at 106.
151 Id. at 107.
152 Id. at 106.
153 Id.
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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.”154 By contrast, the U.S. Court of Appeals for
the Third Circuit, while remarking that “Screws is not a model of clarity,”155 has held that it is
sufficient if a defendant “exhibited reckless disregard for a constitutional or federal right.”156
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.157
Private Rights of Action: Civil Liability for Law Enforcement
Officers
In addition to the civil and criminal penalties discussed above, several federal laws al ow private
actors to pursue litigation to impose civil liability on government actors—such as police
officers—who violate the Constitution. This subsection discusses the primary federal laws that
provide remedies for constitutional violations committed by government actors, including 42
U.S.C. §1983 (Section 1983), the corresponding judicial y created cause of action under Bivens v.
Six Unknown Named Agent of Federal Bureau of Narcotics, and the Federal Tort Claims Act
(FTCA). This subsection also discusses the qualified immunity doctrine, a judicial y created
immunity used to shield public officials in civil rights lawsuits brought under Bivens and Section
1983.
Section 1983
A key federal law designed to prevent and redress constitutional violations by state and local
government actors is Section 1983. Passed as part of the Civil Rights Act of 1871 (also known as
the Ku Klux Klan Act),158 Section 1983 provides a cause of action to recover money damages or
injunctive relief for “the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” by any person acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory.”159 As applied to the conduct of police officers,
Section 1983 provides a legal remedy for individuals claiming that a state or local police officer
acting under the color of state or local law violated the plaintiff’s constitutional rights, such as the
right to be free from excessive force under the Fourth Amendment.160 Analogizing Section 1983
to the role common law tort actions have in deterring wrongful conduct, the Supreme Court has
described this civil rights remedy as a “vital component . . . for vindicating cherished
constitutional guarantees.”161
Section 1983 suits often name individual law enforcement officers as defendants but, in limited
circumstances, plaintiffs may use Section 1983 to seek damages from local governments or local

154 United States v. Garza, 754 F. 2d 1202, 1210 (5th Cir. 1985).
155 United States v. Johnstone, 107 F. 3d 200, 208 (3d Cir. 1997).
156 Id. at 209. In Johnstone, the T hird Circuit upheld a jury instruction stating both that “an act is done willfully if it is
done voluntarily and intentionally, 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.” Id. at 209-210.
157 See Michael J. Pastor, A Tragedy and a Crime? Amadou Diallo, Specific Intent, and the Federal Prosecution of
Civil Rights Violations, 6 N.Y.U. J. LEGIS. & PUB. POL’Y 171,172 (2002).
158 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 665 (1978).
159 42 U.S.C. § 1983.
160 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
161 Owen v. Independence, 445 U.S. 622, 651 (1980).
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government agencies. In Monell v. Department of Social Services, the Court held that a
municipality is a “person” subject to suit under Section 1983.162 However, the Court further held
that a local government cannot be sued “for an injury inflicted solely by its employees or agents”
under the theory of respondeat superior (the legal doctrine that an employer may be liable to suit
for wrongful acts of its employees).163 Rather, under Monell, a Section 1983 plaintiff must show
that an injury stems from a “policy or custom” of the municipality.164 This requires a showing
that, “through its deliberate conduct, the municipality was the ‘moving force’ behind the injury
al eged,”165 and that the municipality acted with “deliberate indifference to the risk that a
violation of a particular constitutional or statutory right wil follow.”166 This exacting standard has
led one commentator to assert that municipal liability “is practical y a dead letter.”167
The Bivens Doctrine
As discussed above, Section 1983 was designed to prevent and redress constitutional violations
committed by state and local government actors. Federal action, however, is beyond the statute’s
reach.168 Nonetheless, the Supreme Court has recognized an implied cause of action, similar to
the remedy provided in Section 1983, for individuals seeking money damages against individual
federal law enforcement officers. In a 1971 decision, Bivens v. Six Unknown Named Agent of
Federal Bureau of Narcotics,169 the Supreme Court established that in limited circumstances,
“victims of a constitutional violation by a federal agent have a right to recover damages against
the official in federal court despite the absence of any statute conferring such a right.”170 In
Bivens, the plaintiff filed a claim against a group of federal narcotics agents after they conducted
what he al eged to be an unconstitutional search of his home in violation of the Fourth
Amendment.171 The Court, in holding that the plaintiff could pursue money damages for his
Fourth Amendment claim, reasoned that when federal y protected rights have been “invaded,” a
plaintiff is entitled to a remedy—whether that remedy is statutorily or judicial y created.172 Thus,
the Court implied a private cause of action for individuals seeking money damages for Fourth
Amendment violations.173
The Court implied a remedy for constitutional violations committed by federal actors in two other
circumstances following Bivens. In a 1979 case, Davis v. Passman, the Court held that an
administrative assistant who sued a Congressman for gender discrimination could pursue money
damages for violating the equal protection principles embodied in the Fifth Amendment’s Due
Process Clause.174 And, a year later in Carlson v. Green, the Court extended a Bivens remedy to a
federal prisoner’s estate seeking money damages against the Director of the Federal Bureau of

162 436 U.S. 658, 690 (1978).
163 Id. at 694.
164 Id.
165 Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997).
166 Id. at 411.
167 Avidan Y. Cover, Revisionist Municipal Liability, 52 GA. L. REV. 375, 379 (2018).
168 District of Columbia v. Carter, 409 U.S. 418, 424 (1973).
169 403 U.S. 388 (1971).
170 Carlson v. Green, 446 U.S. 14, 18 (1980).
171 Bivens, 403 U.S. at 389.
172 Id. at 392.
173 Id.
174 442 U.S. 228, 248 (1979).
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Prisons for al egedly failing to provide adequate medical treatment in violation of the Eighth
Amendment.175
The Supreme Court has not implied a new cause of action under Bivens in more than 30 years.176
For example, the Court declined to extend a Bivens remedy in a First Amendment suit against a
federal employer,177 in several Eighth Amendment cases brought against private prison officials
under contract with the Federal Bureau of Prisons,178 and in a Fifth Amendment case claiming
federal government interference with a landowner’s property rights.179 The Court continued its
trend of limiting Bivens remedies in its 2017 decision Ziglar v. Abbasi.180 In Abbasi, the Court
considered the availability of a Bivens remedy for a group of non-citizens—mostly of Arab or
South Asian decent—who had been detained following the September 11, 2001 attacks.181 In
declining to extend the doctrine, the Court observed that since Bivens was decided, the Court had
“adopted a far more cautious course” in al owing recovery under judicial y created causes of
action, recognizing that it is a “significant step under separation-of-powers principles for a court
to determine that it has the authority . . . to create and enforce a cause of action for damages
against federal officials in order to remedy a constitutional violation.”182 Viewing it as Congress’s
role to create such a remedy, the Court considered the expansion of the Bivens doctrine to be a
“disfavored judicial activity.”183
The Abbasi Court provided a two-part test to determine whether a Bivens remedy is available.
First, the Court looks at whether the case presents a “new context”—that is, whether the case
differs meaningfully from the three cases where a Bivens remedy has been established (i.e.,
Bivens, Davis, or Carlson).184 Second, if the case does present a new context, the Court considers
whether there are “special factors” counseling against creating a remedy.185 Central to this
analysis, according to the Court, are separation-of-powers principles.186 The Court has declined to
extend Bivens remedies in cases implicating issues more appropriate for the other branches, such
as federal fiscal policy187 or international relations.188
Applying this test earlier this year in Hernández v. Mesa, the Court declined to extend a Bivens
remedy in a case involving a United States Border Patrol agent who fatal y shot a 15-year-old
Mexican national who was on the Mexican side of the U.S.-Mexico border.189 In so holding, the
Court determined that the case arose under a “new context” because it involved a cross-border
shooting claim: although the plaintiffs invoked the same constitutional authorities at issue in

175 446 U.S. 14, 19 (1980).
176 Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).
177 Bush v. Lucas, 462 U.S. 367. 390 (1983).
178 Minneci v. Pollard, 555 U.S. 118, 120 (2012); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001).
179 Wilkie v. Robbins, 551 U.S. 537, 537 (2007).
180 137 S. Ct. at 1843.
181 Id. at 1853.
182 Id. at 1855–56.
183 Id. at 1857.
184 Id. at 1859.
185 Id. at 1857.
186 Hernández v. Mesa, 140 S. Ct. 735, 743 (2020).
187 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).
188 Hernández, 140 S. Ct. at 743-4.
189 Id. at 739.
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Bivens and Davis, the underlying facts were “meaningfully different.”190 Moreover, the special
factors analysis precluded extension of a Bivens remedy because the availability of a damages
remedy for incidents arising on foreign soil implicated considerations involving foreign policy,
counseling hesitation about extending Bivens to this context.191
Despite these limitations on the Bivens doctrine, the Supreme Court has emphasized that Bivens
itself is “wel -settled law.”192 The Court continues to al ow claims against federal actors for
money damages in the three limited contexts it has already recognized, including those against
federal law enforcement officers for violations of the Fourth Amendment—such as claims
al eging excessive use of force.193 Nonetheless, even if a federal court al ows a plaintiff to pursue
a Bivens remedy for an al eged constitutional violation by a federal official, as discussed below,
qualified immunity may nevertheless shield that federal official from liability.194 And, because the
Court has expressed its reluctance to extend the Bivens doctrine to new contexts, some
commentators argue that this judicial restraint in extending Bivens leaves individuals without a
civil damages remedy against many federal actors who may have violated their constitutional
rights.195
The Federal Tort Claims Act
The FTCA also provides a civil remedy for the wrongful acts of federal officials, including
federal law enforcement. Subject to various exceptions, limitations, and prerequisites, the
FTCA—enacted in 1946—al ows plaintiffs to sue the United States for money damages for
certain types of state law torts committed by its employees.196 The FTCA acts as a waiver of
federal sovereign immunity in limited cases involving tortious acts—such as negligence—
committed by United States employees within the scope of their employment.197 Unlike a Bivens
claim, an action brought pursuant to the FTCA is one against the United States and not the
individual employee.198 A plaintiff may not sue the United States in federal court under the FTCA
until he or she first exhausts administrative remedies in the relevant federal agency.199
General y, plaintiffs may not recover for intentional misconduct committed by federal
employees.200 However, in 1974—in response to a series of no-knock drug enforcement raids on
private homes performed by federal law enforcement agents201—Congress amended the FTCA to

190 Id. at 744.
191 Id. at 749.
192 Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017).
193 See, e.g., Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 712 (S.D.N.Y. 2020) .
194 See infra “Qualified Immunity.”
195 Mark Joseph Stern, Democrats’ Police Reform Bill Lets Federal Agents Off the Hook, SLATE (June 8, 2020),
https://slate.com/news-and-politics/2020/06/democrats-police-reform-bill-federal-agents.html (last visited Sept 11,
2020).
196 See CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, by Kevin M. Lewis (Nov. 20,
2019).
197 Levin v. United States, 568 U.S. 503, 506–07 (2013).
198 Daniel A. Morris, Federal Employees' Liability Since the Federal Employees Liability Reform & Tort Compensation
Act of 1988 (the Westfall Act), 25 CREIGHTON L. REV. 73, 82 (1991).
199 28 U.S.C. § 2675(a).
200 Id. § 2680(h).
201 James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J.
117, 132 (2009).
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al ow for claims of intentional torts of assault, battery, false imprisonment, false arrest, abuse of
process, and malicious prosecution committed by certain federal law enforcement officers.202 The
amendment applies to “investigative or law enforcement officer[s]” defined as “any officer of the
United States who is empowered by law to (1) execute searches, (2) seize evidence, or (3) make
arrests for violations of Federal law.”203
Congress enacted the 1974 FTCA amendment nearly three years after the Supreme Court’s
Bivens decision. In 1980, the Supreme Court clarified that the 1974 amendment to the FTCA did
not preempt a Bivens claim, meaning that the judicial y created Bivens remedy was stil available
to plaintiffs who could also bring an FTCA claim.204 In reaching its decision, the Court
emphasized that Congress had expressed its intent that the FTCA and Bivens actions be “paral el,
complementary causes of action.”205 The Court also highlighted four factors that suggested the
Bivens remedy is more “effective” than the FTCA and therefore should coexist with claims
brought under the FTCA:
1. the Bivens remedy, because it authorizes damages against individual officers,
serves a “deterrent purpose,”
2. a court may award punitive damages in a Bivens suit, while the FTCA general y
prohibits courts from awarding punitive damages against the United States,
3. a plaintiff cannot opt for a jury in an FTCA action, and
4. an action under FTCA exists only if the state in which the al eged misconduct
occurred has a law prohibiting the conduct.206
In 1988, Congress passed the Westfal Act to substitute the United States as the defendant in
FTCA claims, seeking to “protect Federal employees from personal liability for common law torts
committed within the scope of their employment.”207 Congress, however, did not extend the
Westfal Act’s protections for individual federal employees who commit constitutional violations,
thus effectively preserving the Bivens remedy.208 Therefore, FTCA claims against the United
States for certain intentional torts committed by federal law enforcement may remain available
alongside the limited Bivens actions available against individual federal law enforcement
officials.209 Nonetheless, some courts have interpreted provisions of the FTCA to preclude
simultaneous recovery under both the FTCA and a Bivens action; thus in some jurisdictions,
plaintiffs must choose whether to proceed under the FTCA or Bivens.210
Qualified Immunity
While federal law provides remedies for individuals to recover against government officials for
constitutional violations, the doctrine of qualified immunity may afford government officials a
shield from civil liability. As discussed below, the doctrine plays a particularly prominent role in

202 28 U.S.C. § 2680(h).
203 Id.
204 Carlson v. Green, 446 U.S. 14, 23 (1980).
205 Id. at 20.
206 Id. at 20.
207 Pub. L. No. 100-694, 102 stat. 4563 (1988).
208 See Pfander & Baltmanis, supra note 201, at 134.
209 Manning v. United States, 546 F.3d 430, 431 (7th Cir. 2008).
210 James E. Pfander & Neil Aggarwal, Bivens, the Judgment Bar, and the Perils of Dynamic Textualism , 8 U. ST.
T HOMAS L.J. 417, 418 (2011).
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defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine
and against state and local police under Section 1983.
What Is Qualified Immunity?
Qualified immunity is a judicial y created legal doctrine that shields government officials
performing discretionary duties from civil liability in cases involving the deprivation of statutory
or constitutional rights.211 Government officials are entitled to qualified immunity so long as their
actions do not violate “clearly established statutory or constitutional rights of which a reasonable
person would have known.”212 The Supreme Court has observed that qualified immunity balances
two important interests—“the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.”213 The immunity’s broad protection is intended for “al but the
plainly incompetent or those who knowingly violate the law”214 and to give government officials
“breathing room” to make reasonable mistakes of fact and law.215 According to the Supreme
Court, the “driving force” behind qualified immunity was to ensure that “insubstantial claims”
against government officials were resolved at the outset of the lawsuit.216 Qualified immunity
provides immunity not only from civil damages, but from having to defend against suit
altogether—if the doctrine applies, a case must be dismissed.217
Courts apply a two-part analysis when determining whether an official is entitled to qualified
immunity: (1) whether the facts the plaintiff al eges amount to a constitutional violation, and
(2) if so, whether the constitutional right at issue was “clearly established” at the time of the
misconduct.218 Supreme Court precedent provides flexibility in applying this standard, granting
courts the discretion to decide which prong to address first in light of the facts of the case at
hand.219 Whether a right is clearly established depends on whether “the contours of a right are
sufficiently clear” so that every “reasonable official would have understood that what he is doing
violates that right.”220 When conducting this analysis, courts look to see whether it is “beyond
debate” that existing legal precedent establishes the il egality of the conduct.221
Qualified immunity is available for local and state government officials such as, for example, law
enforcement officers, teachers, or social workers. Federal officials who face liability in cases
brought under the Bivens doctrine222 may also claim qualified immunity.223

211 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
212 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
213 Pearson, 555 U.S. at 231.
214 Malley v. Briggs, 475 U.S. 335, 341 (1986).
215 Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011).
216 Pearson, 555 U.S. at 231.
217 Id.
218 Id. at 232.
219 Id. at 236.
220 Ashcroft, 563 at 741.
221 Id.
222 See supra “T he Bivens Doctrine.”
223 Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).
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Historical Development of Qualified Immunity
The Supreme Court developed the doctrine of qualified immunity as part of its interpretation of
Section 1983. While the modern qualified immunity test was first set forth in the Supreme
Court’s 1982 decision Harlow v. Fitzgerald,224 the concept of qualified immunity as a “good faith
defense” has origins in common law.225 The Court first extended a “good faith defense” to police
officers in a Section 1983 case in its 1967 decision Pierson v. Ray.226 There, the Court held that
Section 1983 “should be read against the background of tort liability that makes a man
responsible for the natural consequences of his actions,” and therefore, common law defenses
such as good faith were applicable to actions brought under Section 1983.227 The Court
determined that although common law immunities were not expressly included in Section 1983,
there was no evidence in the legislative record that Congress intended to abolish such
immunities.228
Fifteen years later in Harlow, the Court again recognized that the common law afforded
government officials some level of immunity to “shield them from undue interference with their
duties and from potential y disabling threats of liability,” but distinguished qualified immunity
from absolute immunity.229 Absolute immunity provides a complete immunity from civil liability
and is usual y extended to, for example, the President of the United States, legislators, judges, and
prosecutors acting in their official duties.230 Absolute immunity, according to the Court, provides
high-level officials a “greater protection than those with less complex discretionary
responsibilities.”231 However, the Court explained that qualified immunity is stil necessary for
other government officials, to balance “the importance of a damages remedy to protect the rights
of citizens” with “the need to protect officials who are required to exercise their discretion and the
related public interest in encouraging the vigorous exercise of official authority.”232 Thus, the
Court established the modern test, granting qualified immunity to those government officials
whose conduct “does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”233
In the years since Harlow, the Supreme Court has continued to refine and expand the reach of the
doctrine.234 For example, one legal scholar examined eighteen qualified immunity cases that the
Supreme Court heard from 2000 until 2016, each considering whether a particular constitutional
right was clearly established.235 In sixteen of those cases, many of which involved police use of
excessive force in violation of the Fourth Amendment, the Court found that the government
officials were entitled to qualified immunity because they did not act in violation of clearly

224 Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
225 Pierson v. Ray, 386 U.S. 547, 557 (1967).
226 Id.
227 Id.
228 Id. at 555.
229 Harlow, 457 U.S. at 806–07.
230 Id. at 811.
231 Id. at 807.
232 Id.
233 Id. at 818.
234 Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 MINN. L. REV. 62, 63 (2016).
235 Id.
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established law.236 In deciding what constitutes clearly established law, the Court has focused on
the “generality at which the relevant legal rule is to be identified.”237 Recently, the Court has
emphasized that a clearly established right must be defined with specificity, such that even minor
differences between the case at hand and the case in which the relevant legal right claimed to be
violated was first established, can immunize the defendant police officer.238 For example, in the
2019 case City of Escondido, California v. Emmons, the Court reviewed a claim brought by a man
who al eged police used excessive force in arresting him.239 Following past incidents of domestic
abuse by a husband against his wife, police in Escondido, California, responded to a domestic
disturbance cal at the residence of the couple.240 After police failed to make contact with anyone
inside the home, a man—who later turned out to be the wife’s father—eventual y opened the door
and passively brushed past the police.241 An officer took the man to the ground and handcuffed
him, al egedly injuring him in the process.242 In holding the officer was entitled to qualified
immunity, the Court explained that the appropriate inquiry is not whether the officer violated the
man’s clearly established right to general y be free from excessive force, but rather whether
clearly established law “prohibited the officers from stopping and taking down a man in these
circumstances.”243 In so holding, the Court rejected the lower court’s attempts to analogize this
case to another that general y involved the use of excessive force in response to “passive
resistance” by a criminal suspect.244 Instead, the Court, citing other recent precedent, stressed the
need to “identify a case where an officer under similar circumstances was held to violate the
Fourth Amendment.”245
The Debate over Qualified Immunity
As courts have expanded the protections of qualified immunity over the years, criticism of the
doctrine has also increased. At least three major criticisms of the doctrine have emerged. First,
some scholars have argued that qualified immunity has no basis in the common law—the body of
law from which the Court determined the doctrine originated.246 In several separate opinions,
Justice Thomas has advocated for reconsidering the Court’s qualified immunity jurisprudence on
these grounds, arguing that the modern doctrine bears little resemblance to common law
immunity and instead represents a “freewheeling policy choice” that the Court lacks the power to
make, and that usurps the role of Congress.247
Other criticisms of the doctrine focus more on its practical application, with some arguing that
qualified immunity no longer achieves its policy goals of protecting public officials from the
expense and distraction of litigation, and that the fear of being sued wil prevent officials from

236 Id.
237 Anderson v. Creighton, 483 U.S. 635, 639 (1987).
238 City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019).
239 Id. at 501.
240 Id.
241 Id. at 502.
242 Id.
243 City of Escondido, Cal. 139 S. Ct. at 503.
244 Id.
245 Id. at 504.
246 See Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797, 1801 (2018).
247 Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (T homas, J., dissenting); Baxter v. Bracey, 140 S. Ct. 1862, (2020)
(T homas, J., dissenting).
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performing their duties or from entering public service altogether.248 For example, Justice Breyer
has argued that police departments’ indemnification of their employees may al eviate employees’
concerns about facing liability for misconduct.249 And, according to one study, police officers are
“virtual y always indemnified,”—meaning even if they are found liable for their own individual
conduct, the city or county that employs them covers any monetary damages.250
There is also some concern that the level of specificity required has made it increasingly difficult
for plaintiffs to show that the law was clearly established251—which some scholars argue may
jeopardize the purpose of Section 1983 as a tool for al owing individuals to recover for
constitutional violations.252 Justice Sotomayor, dissenting in several cases in which the Court
found officers were entitled to qualified immunity, expressed her disagreement with the modern
approach, fearing its application essential y provides an absolute shield253 for law enforcement
officers and “renders the protections of the Fourth Amendment hollow.”254 Some statistics may
support this hypothesis: according to one recent study, appel ate courts have shown an increasing
tendency to grant qualified immunity, particularly in excessive force cases.255 From 2005 to 2007,
for example, courts granted qualified immunity to police in 44 percent of excessive force cases.
That number jumped to 57 percent in excessive force cases decided from 2017 to 2019.256
The modern doctrine of qualified immunity is not without its proponents, however. Throughout
its qualified immunity jurisprudence involving the police, a majority of the Supreme Court has
emphasized the important role the doctrine plays in al owing law enforcement the flexibility to
make judgment cal s in rapidly evolving situations.257 According to one defender of the doctrine,
law enforcement officers find it “comforting” to know the doctrine protects al but “the plainly
incompetent or those who knowingly violate the law.”258 And, although a majority of jurisdictions
may indemnify police officers, some do not—leaving officers at risk of personal financial
liability.259 Other scholars defend qualified immunity on stare decisis grounds (i.e., the doctrine
that promotes maintaining long settled interpretations of the law—especial y statutes—absent a
special justification), while questioning both the historical and practical arguments against the
doctrine.260 Some studies, while perhaps also undermining the need for the doctrine, may refute

248 See Schwartz, supra note 246, at 1803.
249 Richardson v. McKnight, 521 US 399, 411 (1997).
250 Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 890 (2014).
251 See Schwartz, supra note 246, at 1814.
252 Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever
Increasing Lim itations on the Developm ent and Enforcem ent of Constitutional Rights and Som e Particularly
Unfortunate Consequences, 113 MICH. L. REV. 1219, 1245 (2015).
253 Kisela v. Hughes, 138 S. Ct. 1148, 1155 (2018) (Sotomayor, J., dissenting).
254 Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting).
255 Andrew Chung et. al., Shielded, REUTERS (May 8, 2020,) https://www.reuters.com/investigates/special-report/usa-
police-immunity-scotus/ (last visited Sept. 11, 2020).
256 Id.
257 Scheuer v. Rhodes, 416 U.S. 232, 246 (1974).
258 Richard G. Schott, Qualified Immunity How it Protects Law Enforcement Officers, FBI LAW ENFORCEMENT
BULLETIN (Sept. 1, 2012), https://leb.fbi.gov/articles/legal-digest/legal-digest-qualified-immunity-how-it-protects-law-
enforcement -officers (last visited Sept, 11, 2010).
259 See Brief in Opposition to Petition for Writ of Certiorari at 24, Baxter v. Bracey, 140 S. Ct. 1862, (2019).
260 Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 NOTRE DAME L. REV.
1853, 1856 (2018) (noting, “ [a]s the Supreme Court recently explained in Kim ble v. Marvel Entertainm ent, when it
comes to nonconstitutional holdings, ‘stare decisis carries enhanced force’ because those who think the judiciary got
the issue wrong ‘can take their objections across the street, and Congress can correct any mistake it sees.’”).
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the concern that qualified immunity is a significant barrier to recovery under Section 1983. For
example, according to one study, “qualified immunity is rarely the formal reason that civil rights
damages actions against law enforcement end.”261
As the debate over qualified immunity continues, there is discussion over which branch of
government should be responsible for reforming the doctrine.262 Because qualified immunity is
judicial y created, the Supreme Court may, as it has in the past, choose to revise the doctrine.263
As mentioned above, some justices—for varying reasons—believe the modern application of
qualified immunity should be reexamined. And some observers suggest that the Court may be
preparing to reconsider the doctrine.264 Other scholars, however, express skepticism that the
Roberts Court wil reverse course on its expansion of the doctrine, pointing out that the Court is
general y reluctant to overturn its interpretation of statutes.265 Another group of scholars suggest
that even if it does not completely repeal the doctrine, the Court may choose to revisit its prior
precedent to “better align” qualified immunity with its original y intended role.266 With a single
noted dissent, the Court, however, recently rejected a number of petitions to review cases
involving qualified immunity.267
Even without action from the Court, there may be a potential role for Congress in revising
qualified immunity. Because qualified immunity is a product of statutory interpretation, Congress
has wide authority to amend, expand, or even abolish the doctrine. Recent legislative proposals
regarding qualified immunity that have been introduced in the 116th Congress are discussed in
more depth later in this report.268
Grant Conditions and Data Collection
Beyond current laws imposing liability on law enforcement officers and agencies, the federal
government currently has authority to regulate law enforcement through its financial support to
state and local law enforcement in the form of grants. Two key sources of federal criminal justice
funding are the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program269 and
the Community Oriented Policing Services (COPS) Program.270 Federal grant programs may
provide valuable assistance for state and local initiatives that Congress seeks to support. For
instance, COPS grants have al owed law enforcement agencies hire additional officers, purchase
new equipment, combat methamphetamine production, upgrade criminal records, and improve

261 Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 8 (2017).
262 Scott Michelman, The Branch Best Qualified to Abolish Immunity, 93 NOTRE DAME L. REV. 1999, 2000 (2018).
263 Id.
264 Jay Schweikert & Clark Neily, As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins
the Fight, CATO AT LIBERTY (Jan. 17, 2020), https://www.cato.org/blog/supreme-court -considers-several-qualified-
immunity-cases-new-ally-joins-fight (last visited Sept. 11, 2020).
265 William Baude, Is Qualified Immunity Unlawful?, 106 CAL. L. REV. 45, 80 (2018).
266 See Schwartz, supra note 246, at 1833.
267 Baxter v. Bracey, 140 S. Ct. 1862, (June 15, 2020) (T homas, J., dissenting); Nick Sibilla, Supreme Court Refuses to
Hear Challenges to Qualified Im m unity, Only Clarence Thom as Dissents, FORBES (June 15, 2020),
https://www.forbes.com/sites/nicksibilla/2020/06/15/supreme-court -refuses-to-hear-challenges-to-qualified-immunity-
only-clarence-thomas-dissents/#3806f07f7fad (last visited Sept. 11, 2020).
268 See infra “Qualified Immunity.”
269 See CRS In Focus IF10691, The Edward Byrne Memorial Justice Assistance Grant (JAG) Program , by Nathan
James (Jan. 20, 2020).
270 See CRS In Focus IF10922, Community Oriented Policing Services (COPS) Program , by Nathan James (Jan. 30,
2020).
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their forensic science capabilities.271 Byrne JAG grants have been used to support a wide range of
state and local criminal justice initiatives, including training officers on use of force and de-
escalation of conflict.272
In addition, as discussed above, Congress may use its Spending Clause power to require states to
enact certain policies to qualify for such funding.273 As one example, among other conditions,
states that receive Byrne JAG funding must certify compliance with the Death in Custody
Reporting Act (DCRA).274 The DCRA requires states to report to the Attorney General certain
information regarding the deaths of individuals in the custody of law enforcement agencies.275
In addition to guiding state and local law enforcement policy through grant funding, federal
government agencies independently col ect information on topics related to police reform.276 For
instance, the Federal Bureau of Investigation (FBI) runs a Use-of-Force Data Collection program,
gathering data on use-of-force incidents that result in the death or serious bodily injury.277 The
Use-of-Force Data Collection program and other federal data collection efforts278 can help guide
police reform and identify issues that may warrant legislative intervention. At this time, however,
there is a lack of comprehensive and reliable data on law enforcement officers’ use of force:
existing data are incomplete and may not be publical y available.279 While individual states may
collect certain law enforcement data, Congress can only require states to provide such data
pursuant to its enumerated powers, for example by mandating data collection and submission as a
condition of receiving federal funding.280
Considerations for Congress
Even before the high-profile events of spring and summer 2020, commentators and legislators
had suggested numerous avenues for congressional reform and oversight of federal, state, and
local law enforcement, and recent events have prompted additional proposals in this area. Some
recent proposals advocate targeted reforms that would apply only to specific issues related to law

271 See id.
272 See Dep’t of Justice, Feature Stories, https://bja.ojp.gov/feature-stories (last visited Sept. 11, 2020) (highlighting
Byrne JAG projects that have shown promise in reducing crime and positively impacting communities); Dep’t of
Justice, Use of Force and De-Escalation Training to Enhance Public and Officer Safety (2019),
https://bja.ojp.gov/funding/awards/2019-dj-bx-0309 (last visited Sept. 11, 2020).
273 See supra “Spending Power and Regulating Law Enforcement .” While Congress may place conditions on federal
funding, several courts have held, in the context of sanctuary cities litigation, that the executive branch cannot place
additional restriction on the receipt of Byrne JAG funds. See CRS Legal Sidebar LSB10386, Im m igration Enforcem ent
& the Anti-Com m andeering Doctrine: Recent Litigation on State Inform ation -Sharing Restrictions, by Kelsey Y.
Santamaria (March 10, 2020).
274 See Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant (JAG) Program: Reporting Requirements,
https://bja.ojp.gov/program/jag/reporting-requirements (last visited Sept. 11, 2020).
275 34 U.S.C. § 60105.
276 See CRS Report R46443, Programs to Collect Data on Law Enforcement Activities: Overview and Issues, by
Nathan James and Kristin Finklea (July 6, 2020).
277 Fed. Bureau of Investigation, National Use-of-Force Data Collection, https://www.fbi.gov/services/cjis/ucr/use-of-
force (last visited Sept. 11, 2020).
278 See CRS In Focus IF10572, What Role Might the Federal Government Play in Law Enforcement Reform? , by
Nathan James and Ben Harrington (June 1, 2020).
279 See “Data on Police Use of Force”, CRS Report R43904, Public Trust and Law Enforcement—A Discussion for
Policym akers, coordinated by Nathan James (July 13, 2020).
280 See supra “Spending Power and Regulating Law Enforcement .”
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enforcement reform. In addition, the second session of the 116th Congress saw debate focus on
two comprehensive police reform bil s: the George Floyd Justice in Policing Act of 2020 (Justice
in Policing Act)281 and the Just and Unifying Solutions to Invigorate Communities Everywhere
Act of 2020 (JUSTICE Act).282 Both of these comprehensive proposals incorporate and expand
on multiple previous targeted proposals, seeking to spur far-reaching reforms of American law
enforcement. This section provides a sample of recent proposals related to police reform that may
be of particular interest to Congress, first briefly comparing the Justice in Policing Act and the
JUSTICE Act, and then discussing selected legal issues that have attracted legislative attention
during the 116th Congress.
Comprehensive Proposals
At the center of debate in the 116th Congress has been two comprehensive police reform bil s that
would target numerous aspects of law enforcement oversight and regulation: the Justice in
Policing Act283 and the JUSTICE Act.284 On June 8, 2020, Members of Congress led by the
Congressional Black Caucus introduced the Justice in Policing Act.285 An amended version of the
bil passed the House on June 25, 2020 and, as of September 2020, the bil is pending in the
Senate. Senate Republicans introduced the JUSTICE Act on June 17, 2020,286 and as of
September 2020 that bil is also currently pending before the Senate.287
Both the JUSTICE Act and the Justice in Policing Act would incorporate and build on numerous
prior proposals, seeking to impose comprehensive reforms on federal, state and local policing.
The two bil s address certain common issues; however, even when they tackle similar issues, the
two bil s often take different approaches. As a general matter, the Justice in Policing Act would
more often impose direct restrictions on federal law enforcement and invoke Congress’s
Spending Clause power to require federal funding recipients to enact laws placing restrictions on
state and local law enforcement. By contrast, the JUSTICE Act would focus more on non-binding
measures, including funding voluntary initiatives by state and local law enforcement and
gathering data on various law enforcement practices.
As an example, both bil s contain provisions related to police use of force and specific tactics
such as no-knock warrants and chokeholds. With respect to police use of force general y, the
Justice in Policing Act would define “deadly force” and “less lethal force” and provide that
federal agents may only use those types of force if certain conditions are met.288 The bil would
also condition certain federal grants to states, municipalities, and Indian Tribes on recipients’
enacting laws to establish comparable use of force standards. Another provision of the Justice in
Policing Act would require states and localities that receive federal funding to enact laws banning

281 H.R. 7120 (116th Cong. 2020).
282 S. 3985 (116th Cong. 2020).
283 H.R. 7120 (116th Cong. 2020).
284 S. 3985 (116th Cong. 2020).
285 T he Justice in Policing Act was also introduced in the Senate. See S. 3912 (116th Cong. 2020).
286 T he JUST ICE Act was also introduced in the House on June 18, 2020. See H.R. 7278 (116th Cong. 2020).
287 T his section provides an overview of the two proposals. For a more detailed comparison of the Justice in Policing
Act and the JUST ICE Act, see CRS Legal Sidebar LSB10498, Com paring Police Reform Bills: the Justice in Policing
Act and the JUSTICE Act, by Joanna R. Lampe (July 6, 2020). Certain provisions of each bill are also discussed along
with related targeted proposals in the following section. See infra “ Police Reform Proposals—Selected Legal T opics.”
288 H.R. 7120, § 364 (116th Cong. 2020).
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the use of al chokeholds and carotid holds.289 It would also directly prohibit federal law
enforcement officers from using chokeholds or carotid holds unless the conditions for the use of
deadly force are met.290 Officers who failed to comply with the bil ’s requirements and were
charged with homicide would be prohibited from arguing the homicide was justified.291
The JUSTICE Act does not contain provisions restricting the use of deadly or less-lethal force
comparable to those in the Justice in Policing Act; however, the JUSTICE Act would require
reporting of certain incidents involving law enforcement uses of force.292 With respect to specific
police tactics, the JUSTICE Act would require states and local governments that receive certain
federal funding to develop law enforcement agency policies “prohibit[ing] the use of chokeholds
except when deadly force is authorized.”293 It would also require the Attorney General to develop
such a policy at the federal level for federal law enforcement agencies.294 The JUSTICE Act
would require enactment of policies (rather than laws) governing the use of chokeholds; the bil is
silent on how those policies would be enforced. Similarly, both bil s seek to address concerns
related to the use of no-knock warrants, but the Justice in Policing Act would impose or
incentivize direct legal limits on the practice,295 while the JUSTICE Act would instead seek to
gather data on the use of no-knock warrants.296
In addition, both bil s would seek to expand the use of body cameras, but their relevant provisions
vary in scope. The Justice in Policing Act would require certain federal law enforcement officers
to wear body cameras and use such cameras in responding to any cal for service, or at the
initiation of any “law enforcement or investigative stop . . . between a Federal law enforcement
officer and a member of the public,” subject to certain exceptions.297 Another section of the
Justice in Policing Act, the Police CAMERA Act of 2020, would provide federal grants to expand
the use of body cameras by state, local, and tribal law enforcement officers, subject to certain
requirements related to safety, privacy, data retention, and reporting.298 The JUSTICE Act would
provide grants to state, local, and tribal government agencies to support the use of body-worn
cameras by law enforcement officials. Funding recipients would be required to provide
“assurances” that they have specified policies and procedures in place, including requiring certain
training and imposing discipline on officers who fail to use cameras as required.299 Unlike the
Justice in Policing Act, however, the JUSTICE Act would not require the use of body cameras or
cameras in patrol vehicles by federal law enforcement officers.
Both comprehensive police reform bil s include provisions that would impose criminal liability
when a person “acting under color of law, knowingly engages in a sexual act” with an individual

289 Id., § 363.
290 Id., § 364. As discussed further below, the Justice in Policing Act would also amend Section 242 to provide that a
chokehold or carotid hold is a “punishment, pain, or penalty” that may not be imposed on a disparate basis based on
race. See infra “ Criminal Liability.”
291 H.R. 7120, § 364 (116th Cong. 2020).
292 S. 3985, § 101 (116th Cong. 2020).
293 Id., § 105.
294 Id.
295 H.R. 7120, § 362 (116th Cong. 2020).
296 S. 3985, § 102 (116th Cong. 2020).
297 H.R. 7120, § 372 (116th Cong. 2020).
298 Id., § 382.
299 S. 3985, § 201, 202 (116th Cong. 2020).
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in federal custody.300 A violation of either provision would be punishable by a fine and/or up to
fifteen years in prison.301 The Justice in Policing Act would also require recipients of certain
federal funds to enact laws making it a criminal offense “for any person acting under color of law
of the State or unit of local government to engage in a sexual act with an individual” in
custody.302 The JUSTICE Act would authorize the Attorney General to make grants to states,
municipalities, and Indian Tribes that enact similar laws.303
Both the Justice in Policing Act and the JUSTICE Act also contain provisions designed to
enhance law enforcement misconduct records,304 establish best practices for law enforcement
officers and train officers in areas such as use of force and racial bias,305 facilitate federal data
collection and oversight related to police reform,306 and promote hiring of law enforcement
officers who live in or demographical y represent the communities they serve.307
In addition to the foregoing areas of common ground, each of the current comprehensive police
reform bil s includes certain provisions with no analogue in the other bil . For example, the
Justice in Policing Act would amend Section 242 in several ways: changing the mental state
required for conviction from “wil fully” to the less stringent “knowingly or recklessly”; removing
the possibility of a death sentence for violating Section 242; and providing 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” is
a punishment that may not be imposed based on race.308 The bil would also limit qualified
immunity for state and local law enforcement officers in suits under Section 1983, and for federal
law enforcement officers “in any action under any source of law,” providing that it is not a
defense to liability if a defendant believed in good faith that his or her conduct was lawful or that
the rights the defendant al egedly infringed were not clearly established.309 The Justice in Policing
Act would also seek to enhance DOJ investigations under Section 12601 and state, local, and
tribal investigations into uses of deadly force by law enforcement officers.310
The JUSTICE Act, for its part, would create a new criminal offense of “knowingly and wil fully
falsify[ing] a report . . . in furtherance of the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States where death or serious
bodily injury . . . occurs.”311 The penalty for violating that provision would be a fine and/or
imprisonment for up to twenty years.312 The bil would also establish two commissions to
investigate issues and propose reforms in areas related to law enforcement oversight: a
Commission on the Social Status of Black Men and Boys313 and a temporary National Criminal

300 H.R. 7120, § 402 (116th Cong. 2020); S. 3985, § 1001 (116th Cong. 2020).
301 Id.
302 H.R. 7120, § 403 (116th Cong. 2020).
303 S. 3985, § 1002 (116th Cong. 2020).
304 H.R. 7120, §§ 201, 202 (116th Cong. 2020); S. 3985, T itle III (116th Cong. 2020).
305 H.R. 7120, §§ 111-118, 362 (116th Cong. 2020); S. 3985, § 601-602 (116th Cong. 2020).
306 H.R. 7120, §§ 117, 118, 221-227 (116th Cong. 2020); S. 3985, §§ 101, 102 (116th Cong. 2020).
307 H.R. 7120, § 366 (116th Cong. 2020); S. 3985, § 801 (116th Cong. 2020).
308 H.R. 7120, §§ 101, 363 (116th Cong. 2020).
309 Id., § 102.
310 Id., § 103.
311 S. 3985, § 106 (116th Cong. 2020).
312 Id.
313 Id., T itle V.
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Justice Commission.314 Also, the JUSTICE Act would create a new section of the federal criminal
code entitled “Lynching,” which would criminalize conspiring to violate certain federal civil
rights or hate crime statutes.315
Police Reform Proposals—Selected Legal Topics
Certain issues related to police reform have attracted significant attention from commentators and
legislators in recent years. This section analyzes a selection of those issues, including relevant
reform proposals and related legal questions.
Qualified Immunity
Qualified immunity has been the subject of significant debate in recent years. A May 2020 report
by Reuters found that “since 2005, the [federal appel ate] courts have shown an increasing
tendency to grant immunity in excessive force cases.”316 Critics of qualified immunity assert that
the test the Supreme Court announced in Pearson v. Callahan317 improperly hinders Section 1983
claims. Not only is it difficult for plaintiffs to overcome a claim of qualified immunity, these
commentators assert, but furthermore courts often consider only whether a defendant violated
clearly established law, without reaching the question of whether the defendant violated the
plaintiff’s rights—albeit in circumstances courts have not yet specifical y assessed.318 Legal
commentators have argued that this limited inquiry prevents the development of clearly
established law that could govern future Section 1983 cases.319 Other commentators assert that
the current doctrine of qualified immunity fails to protect law enforcement officers from suit.320
Others defend the doctrine or favor limited judicial reforms, asserting the need to afford police
officers some level of deference when making split-second decisions about the use of force, for
example to subdue a fleeing or resisting suspect.321
The doctrine of qualified immunity arises from the Supreme Court’s interpretation of Section
1983.322 Thus, either the Court or Congress could modify the doctrine, and some legal scholars
have cal ed on both branches to address the issue.323 The Court has considered multiple petitions

314 Id., T itle VII, IX.
315 Id., T itle IV. T he version of the Justice in Policing Act introduced in the House on June 8, 2020 included an anti-
lynching provision substantively identical to the one in the JUST ICE Act. T hat provision, referred to as both the Justice
for Victims of Lynching Act and the Emmett Till Anti-Lynching Act, was not included in the version of the Justice in
Policing Act that passed the house on June 25, 2020 . A standalone version of the Emmett T ill Antilynching Act passed
the House in February 2020. See H.R. 35 (116th Cong. 2019).
316 Chung et al., supra note 255.
317 Pearson v. Callahan, 555 U.S. 223, 236 (2009).
318 Lawrence Hurley & Andrea Januta, When Cops Kill, Redress is Rare - Except in Famous Cases, REUTERS (May 29,
2020), https://www.reuters.com/article/uk-minneapolis-police-immunity-outliers/when-cops-kill-redress-is-rare-except-
in-famous-cases-idUKKBN2352MZ (last visited Sept. 11, 2020).
319 Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 N.D. L. REV. 1887, 1891 (2018).
320 Schwartz, supra note 246.
321 See, e.g., Lawrence Rosenthal, Defending Qualified Immunity (July 6, 2020), S.C. L. REV., Forthcoming,
https://ssrn.com/abstract=3559852 (last visited Sept. 11, 2020); Aaron L. Nielson & Christopher J. Walker, A Qualified
Defense of Qualified Im m unity, 93 N.D. L. REV. 1853 (2018).
322 See supra “Qualified Immunity.”
323 See, e.g., Almighty Supreme Born Allah v. Milling, No. 17-8654, Brief for Scholars of the Law of Qualified
Immunity in Support of Petition for Writ of Certiorari (July 11, 2018); Ivan E. Bodensteiner, Congress Needs to Repair
the Court’s Dam age to § 1983, 16 T X. J. ON CIVIL LIBERTIES AND CIVIL RIGHTS 29 (2010).
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for certiorari raising chal enges to qualified immunity,324 and Justice Thomas and Justice
Sotomayor have both expressed concerns about the doctrine.325 However, the Supreme Court has
so far declined to revisit the issue. On the legislative front, the Ending Qualified Immunity Act
introduced in June 2020 would wholly “remove the defense of qualified immunity in the case of
any action under [Section 1983],”326 meaning that the proposal would extend beyond law
enforcement to any government official currently afforded qualified immunity. The Justice in
Policing Act contains a provision that would limit qualified immunity for state and local law
enforcement officers in suits under 42 U.S.C. § 1983, and for federal law enforcement officers “in
any action under any source of law,” providing that it is not a defense to liability if a defendant
believed in good faith that his or her conduct was lawful or that the rights the defendant al egedly
infringed were not clearly established.327
Another proposal aimed at removing barriers to Section 1983 liability is the Reforming Qualified
Immunity Act.328 Unlike current law, which grants officials qualified immunity if the
constitutional right al eged to have been violated is not “clearly established,” this proposal would
place the burden on Section 1983 defendants to affirmatively show with some particularity that
the conduct at issue was authorized by law. Specifical y, the proposal would seek to remove the
existing doctrine of qualified immunity and instead provide that an individual defendant “shal
not be liable” if the defendant reasonably believed that his or her conduct was lawful and either
(1) the conduct at issue was “specifical y authorized or required” by federal or state law, or (2) a
federal or state court had issued a final decision holding that “the specific conduct al eged to be
unlawful was consistent with the Constitution of the United States and Federal laws.”329 The
Reforming Qualified Immunity Act would also revise the rule articulated in Monell330 by
providing that “a municipality or other unit of local government shal be liable for a violation [of
Section 1983] by an agent or employee of the municipality or other unit of local government
acting within the scope of his or her employment,” in effect applying the doctrine of respondeat
superior to such governmental entities.331
In contrast, instead of repealing or otherwise limiting the doctrine, the Qualified Immunity Act of
2020 would codify the doctrine for law enforcement officers by expressly providing immunity if
an officer can show either the law was not clearly established at the time of the officer’s conduct,
or that at the time of the conduct, a court had affirmatively ruled that the conduct was
constitutional.332
Criminal Liability
While changes to the doctrine of qualified immunity could alter civil liability for law enforcement
officers, other proposals would aim to expand criminal liability for civil rights violations by

324 John Elwood, Relist Watch: Looking for the Living Among the Dead, SCOT USBLOG (May. 27, 2020),
https://www.scotusblog.com/2020/05/relist -watch-looking-for-the-living-among-the-dead/ (last visited Sept. 11, 2020).
325 See Ziglar v. Abbasi, 137 S. Ct. 1843, 1870-72 (2017) (Thomas, J., concurring in part and concurring in the
judgment); Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting).
326 H.R. 7085 (116th Cong. 2020); S. 4142 (116th Cong. 2020).
327 H.R. 7120, § 102 (116th Cong. 2020).
328 S. 4036 (116th Cong. 2020).
329 Id., § 4.
330 Monell v. Dept. of Social Servs. of New York, 436 U.S. 658, 690 (1978). See also supra “Section 1983.”
331 S. 4036, § 4 (116th Cong. 2020).
332 H.R. 7951 (116th Cong. 2020).
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officers. For example, the Police Accountability Act of 2020 would provide a federal criminal
penalty for assault or homicide committed by certain state or local law enforcement officers.333
And, as discussed below, more comprehensive police reform proposals have included provisions
that would impose criminal liability when a person “acting under color of law, knowingly
engages in a sexual act” with an individual in federal custody.334
Several recently introduced bil s related to criminal penalties for police misconduct would amend
Section 242. For instance, the Eric Garner Excessive Use of Force Prevention Act of 2019 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” that
may not be imposed on a racial y disparate basis.335 Some commentators also advocate revising
the specific intent requirement for Sections 241 and 242 announced in Screws and Guest,336 and
recently proposed legislation would amend Section 242 to revise the wil fulness requirement.337
Amendments to Section 242 may raise various legal questions. For example, as discussed above,
DOJ general y does not bring charges under the “punishments, pains, or penalties” provision of
the statute,338 and proposed amendments to that provision raise the question of whether they
capture conduct not already covered by the statute and whether DOJ would bring charges under
the amended provision. In addition, amendments to Section 242 targeting specific conduct may
raise the question of whether such legislation fal s within the scope of Congress’s enumerated
powers.339 Final y, amending Section 242 to use a less stringent mental state requirement might
raise due process concerns. The Supreme Court plurality in Screws construed Section 242’s
wil fulness requirement stringently to avoid such concerns but also noted, “If Congress desires to
give the Act wider scope, it may find ways of doing so.”340 Nonetheless, a significantly less
stringent mental state requirement might raise questions about whether potential Section 242
defendants have sufficient notice of the conduct the statute prohibits.341
No-Knock Warrants
Another area related to police reform that has received significant recent attention is the use of
“no-knock” warrants—warrants that al ow law enforcement officers to enter a home without first
seeking consensual entry by announcing themselves and their purpose. As a default, law
enforcement officers must comply with a common-law doctrine cal ed the knock and announce
rule, which general y requires officers to knock and announce their presence before entering a

333 H.R. 5777 (116th Cong. 2020).
334 H.R. 7120, § 402 (116th Cong. 2020); S. 3985, § 1001 (116th Cong. 2020).
335 H.R. 4408 (116th Cong. 2019). T his proposal is also included in the Justice in Policing Act. See H.R. 7120, § 363
(116th Cong. 2020).
336 See, e.g., U.S. COMM’N ON CIVIL RIGHTS, REVISITING WHO IS GUARDING THE GUARDIANS? A REPORT ON POLICE
PRACTICES AND CIVIL RIGHTS IN AMERICA, RECOMMENDATION 5.4 (Nov. 2000).
337 See, e.g., H.R. 7120, § 101 (116th Cong. 2020); H.R. 7131 (116th Cong. 2020) (bill that would amend Section 242
to apply specifically to offenses performed “recklessly” by law enforcement and corrections officers).
338 See supra “Differential Punishment.”
339 See supra “Section 5 of the Fourteenth Amendment and Regulating Law Enforcement.”
340 Screws v. United States, 325 U.S. 91, 105 (1945).
341 See, e.g., id. at 97-98 (stating that if Section 242 was construed only to require that a defendant intentionally took
some action that was later deemed to be unconstitutional, “[t]hose 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 due process of law. T he
enforcement of a criminal statute so construed would indeed cast law enforcement agencies loose at their own risk on a
vast uncharted sea.”).
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home to execute a search warrant.342 The Supreme Court has interpreted the Fourth Amendment's
reasonableness requirement as general y mandating compliance with the knock and announce
rule.343 However, there are two exceptions to the knock and announce rule for (1) exigent
circumstances where the “police have a ‘reasonable suspicion’ that knocking and announcing
would be dangerous, futile, or destructive to the purposes of the investigation”344 and (2) no-
knock warrants, which provide explicit authority for judges to grant so-cal ed “no-knock” entry in
the warrant itself, upon a finding of certain factual predicates.345
A number of states have statutes that authorize magistrate judges to grant no-knock warrants in
certain circumstances.346 Under federal law, a statute previously authorized no-knock warrants for
certain drug searches, but Congress repealed it.347 As a result, the legal status of federal no-knock
search warrants is unsettled,348 although federal officers do sometimes employ no-knock warrants
or act pursuant to no-knock warrants issued by state courts when serving on joint state-federal
task forces.349 Some courts have concluded that no-knock warrants shield officers from
responsibility for independently assessing the existence of exigent circumstances at the time of
entry.350 To the extent that is true, no-knock warrants could permit no-knock entry where the
exigent circumstances exception would not—for example, in an instance where the factors that
justified the no-knock warrant are no longer present at the time of entry.
At least two bil s introduced in the 116th Congress would change the legal landscape regarding
unannounced home entry by law enforcement during execution of search warrants. The Justice in
Policing Act would establish that search warrants issued in federal drug cases must “require that a
law enforcement officer execute the search warrant only after providing notice of his or her
authority and purpose.” That bil would also require states and localities that receive certain
federal funds to “have in effect a law that prohibits the issuance of a no-knock warrant in a drug
case.”351 Legislation introduced in the Senate, the Justice for Breonna Taylor Act, would establish
that federal law enforcement officers “may not execute a warrant” without providing notice of
authority and purpose and would prohibit state and local law enforcement agencies receiving
federal funds from executing warrants that do not “require” the serving officer to provide notice
of authority and purpose prior to forcible entry.352
At least with respect to the requirement for states and localities in the Justice in Policing Act, it
appears that unannounced entry would stil be permitted in exigent circumstances. The more
difficult question may be what effect the requirement for federal drug warrants in that bil would
have. Under the bil ’s terms, al warrants authorized in federal drug cases would have to expressly

342 See, e.g., Hudson v. Michigan, 547 U.S. 586, 589 (2006) (“ The common-law principle that law enforcement officers
must announce their presence and provide residents an opportunity to open the door is an ancient one. ”).
343 See Wilson v. Arkansas, 514 U.S. 927 (1995).
344 United States v. Ramirez, 523 U.S. 65, 71 (1998).
345 See, e.g., United States v. Mattison, 153 F.3d 406, 409 (7th Cir. 1998).
346 See Brian Dolan, To Knock or Not to Knock? No-Knock Warrants and Confrontational Policing, 93 ST. JOHN’S L.
REV. 201, 214 (2019).
347 See DEP’T OF JUSTICE, OFFICE OF LEGAL COUNSEL, AUTHORITY OF FEDERAL JUDGES AND MAGISTRATES TO ISSUE
“NO-KNOCK” WARRANTS, OPINIONS OF THE OFFICE OF LEGAL COUNSEL, Volume 26, 50 (June 12, 2002).
348 See id. at 49.
349 See, e.g., Ramirez, 523 U.S. at 68.
350 See, e.g., United States v. Spry, 190 F.3d 829, 833 (7th Cir. 1999).
351 H.R. 7120, § 362 (116th Cong. 2020). T he JUST ICE Act, while not directly altering existing practices, would
require reporting on the use of no-knock warrants. See S. 3985, § 102 (116th Cong. 2020).
352 S. 3955 (116th Cong. 2020).
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require that they be executed “only after” a law enforcement officer has provided notice of his or
her authority and purpose.353 As such, were the bil to become law, it could possibly create tension
between the “exigent circumstances” exception to the knock and announce rule and the required
terms of warrants under the new statute. That said, though warrants would require notice under
the proposal, and officers who did not comply with that requirement would violate the terms of
the warrant, it is not clear that no-knock entry in such a circumstance would lead to consequences
like evidence exclusion.354 Because the Justice for Breonna Taylor Act does not reference exigent
circumstances or otherwise delineate exceptions, the bil raises similar questions regarding its
relationship to current knock-and-announce doctrine.
Law Enforcement Identification
Recent events involving the deployment of federal law enforcement officers in response to
protests in cities such as Portland, Oregon, have raised unique issues regarding law enforcement
identification. Reports out of Portland suggested that unidentified federal law enforcement
officers detained protestors and transported them in unmarked vehicles.355 Although there is no
general y applicable requirement in statute that federal law enforcement officers identify
themselves or display identifying information on their person when acting in public ,356 recently
introduced bil s in response to the Portland protests,357 as wel as other recent legislative
proposals, seek to impose new identification requirements on federal law enforcement officers.
For example, the Police Exercising Absolute Care With Everyone Act of 2019 (PEACE) act
would impose a limited requirement that federal law enforcement officers identify themselves as
officers “[w]hen feasible” prior to using force against any person.358 Separately, bil s introduced
in the House and Senate would require federal officers “engaged in any form of crowd control,
riot control, or arrest or detainment of individuals engaged in an act of civil disobedience,
demonstration, protest, or riot in the United States” to “at al times display identifying
information in a clearly visible fashion,” including each officer’s agency, last name, and badge
number.359
Racial Profiling
Another aspect of police reform that features in some recent legislative proposals is racial
profiling. Building on prior proposed legislation related to racial and religious profiling by law

353 H.R. 7120, § 362 (116th Cong. 2020).
354 In other contexts where warrants have been executed in ways that exceed the warrants’ terms, some courts have
declined to suppress evidence in the absence of “ extreme” violations or “ flagrant disregard for the terms” at issue. T he
Supreme Court has taken this view of the federal statute that codifies the common -law knock-and-announce rule and
has observed more generally that when a magistrate declines to authorize no -knock entry in advance, that decision
“should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom
of a no-knock entry at the time the warrant is being executed.”
355 Jonathan Levinson et al., Federal Officers Use Unmarked Vehicles to Grab People in Portland, DHS Confirms,
NPR (July 17, 2020), https://www.npr.org/2020/07/17/892277592/federal-officers-use-unmarked-vehicles-to-grab-
protesters-in-portland (last visited Sept. 11, 2020).
356 CRS Legal Sidebar LSB10499, “No-Knock” Warrants and Other Law Enforcement Identification Considerations,
by Peter G. Berris and Michael A. Foster (June 23, 2020).
357 S. 4220 (116th Cong. 2020); H.R. 7719 (116th Cong. 2020).
358 H.R. 4359 (116th Cong. 2019). T his provision was also incorporated into the Justice in Policing Act. See H.R. 7120,
§ 364 (116th Cong. 2020).
359 S. 3909 (116th Cong. 2020); H.R. 7153 (116th Cong. 2020).
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enforcement,360 the Justice in Policing Act contains several provisions that would aim to address
profiling by federal, state, and local police. The Justice in Police Act would define racial profiling
as “a law enforcement agent or agency relying, to any degree, on actual or perceived race,
ethnicity, national origin, religion, gender, gender identity, or sexual orientation” in planning law
enforcement activities.361 Even “spontaneous investigatory activities” would fal under the Act’s
purview if those activities have “a disparate impact” on a covered group.362 The Justice in Police
Act would impose civil liability for racial profiling, and DOJ or individual victims would be able
to enforce the law by suing in either federal or state court.363 In contrast to suits under existing
law based on Equal Protection claims, individuals would not have to prove that law enforcement
agents intended to treat victims of profiling differently based on their race. Instead, they could
prevail by showing that a policing practice had an unjustified, discriminatory effect.364 The Justice
in Policing Act would require federal law enforcement agencies to revise policies to eliminate
profiling.365 It would also provide funding and training for state and local agencies to combat
racial profiling366 and require federal y funded agencies to set up administrative complaint
procedures to address profiling al egations.367
Limitations on Military-Grade Equipment
Under a federal program known as the 1033 Program, the federal government transfers certain
excess military equipment to state and local law enforcement agencies.368 Some commentators
contend that this type of equipment contributes to militarization of police forces without
increasing public safety and increases the risk of incidents of excessive force.369 The 1033
Program is authorized by statute,370 so Congress has the power to alter or discontinue the
program. A recent proposal related to the 1033 Program, the Stop Militarizing Law Enforcement
Act, would maintain the program but impose additional limitations and reporting requirements.371
Grants and Conditions on Federal Funds
Numerous bil s currently before Congress would invoke the Spending Clause in an effort to
regulate state and local law enforcement activities. Some would fund voluntary state and local
measures, such as use of force and bias awareness training372 or the expanded use of body

360 See End Racial and Religious Profiling Act of 2019, S. 2355 (116th Cong. 2019); End Racial Profiling Act of 2019,
H.R. 4339 (116th Cong. 2019).
361 H.R. 7120, § 302.
362 Id. §§ 302, 312.
363 Id. § 312.
364 Id.
365 Id. § 321.
366 Id. § 361.
367 H.R. 7120, § 331.
368 See, e.g., Defense Logistics Agency, 1033 Program FAQs,
https://www.dla.mil/DispositionServices/Offers/Reutilization/LawEnforcement/ProgramFAQs.aspx .
369 See, e.g., Jonathan Mummolo, Militarization Fails to Enhance Police Safety or Reduce Crime but May Harm Police
Reputation, PNAS (Sept. 11, 2018); Ryan Welch & Jack Mewhirter, Does Military Equipm ent Lead Police Officers to
be More Violent? We Did the Research, WASH. POST (June 30, 2017).
370 10 U.S.C. § 2576a.
371 H.R. 1714 (116th Cong 2019). This proposal was also incorporated into the Justice in Policing Act. See H.R. 7120,
§ 365 (116th Cong. 2020).
372 S. 3063 (116th Cong. 2019).
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cameras.373 Other bil s would require states to enact certain policies in exchange for federal
grants. For instance, the Police Training and Independent Review Act of 2019 would fund
training on cultural diversity and de-escalation tactics while requiring participating states to
“enact laws requiring the independent investigation and prosecution of the use of deadly force by
law enforcement officers.”374 The Preventing Tragedies Between Police and Communities Act of
2019 would oblige federal funding recipients to mandate training on ways to reduce the use of
force.375 The PEACE Act would require recipients of certain federal funds to enact laws limiting
the use of lethal and less than lethal force by law enforcement.376 The Next Step Act of 2019
would, among other things, direct certain federal grant recipients to submit quarterly reports to
the Attorney General on officers’ use of force.377

Author Information

April J. Anderson
Whitney K. Novak
Legislative Attorney
Legislative Attorney

Joanna R. Lampe

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
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373 H.R. 120 (116th Cong. 2019). This provision was also incorporated into the Justice in Policing Act. See H.R. 7120,
§ 382 (116th Cong. 2020).
374 S. 1938 (116th Cong. 2019).
375 H.R. 2927 (116th Cong. 2019).
376 H.R. 4359 (116th Cong. 2019). T his provision was also incorporated into the Justice in Policing Act. See H.R. 7120,
§ 364 (116th Cong. 2020).
377 S. 697 (116th Cong. 2019); H.R. 1893 (116th Cong. 2020).
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