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4 Protecting Against Police Brutality and Official Misconduct

On April 29, 2021, the Brennan a nationwide reminder to law enforceCenter for Justice at NYU Law ment and other public officials of the published a new report, constitutional limits on their authority. Protecting Against Police Brutality and The statutory changes recommended in Official Misconduct, which analyzes this proposal are carefully designed to why 18 U.S.C. § 242 (Section 242 of the better protect civil rights that are already federal criminal code) makes it is so dif- recognized. And because Black, Latino, ficult to prosecute police and corrections and Native Americans are disproportionofficers who engage in civil rights viola- ately victimized by the kinds of official tions. The proposal, authored by former misconduct the proposal addresses, these federal prosecutor and Brennan Center changes would advance racial justice. senior counsel Taryn Merkl, includes This proposal would also help ensure recommendations for Congress to enact a that law enforcement officers in every more robust statutory framework to pro- While our state and local governments my leadership than under any other attor- part of the United States live up to the tect the constitutional rights of people wrestle with how to reimagine relation- ney general before or since. same high standards of professionalism. I who come into contact with public offi- ships between police and the communi- But due to Section 242’s vague wording have immense regard for the vital role cials, including those who are being ties they serve, the Justice Department and a series of Supreme Court decisions that police play in all of America’s comarrested or are in custody. has long been hamstrung in its ability to that raised the standard of proof needed munities and for the sacrifices that they Here is the forward written by former mete out justice when people’s civil for a civil rights violation, it’s often diffi- and their families are too often called to Attorney General, Eric Holder: rights are violated. cult for federal prosecutors to hold law make on behalf of their country. It is in The protest movement sparked by The Civil Rights Acts passed during enforcement accountable using this great part for their sake — and for their George Floyd’s killing last year has Reconstruction made it a federal crime to statute. safety — that we must seek to build trust forced a nationwide reckoning with a deprive someone of their constitutional This timely report outlines changes to in all communities. wide range of deep-rooted racial rights while acting in an official capacity, Section 242 that would clarify its scope, We need to send a clear message that inequities — in our economy, in health a provision now known as Section 242. making it easier to bring cases and win the Constitution and laws of the United care, in education, and even in our Today, when state or local law enforce- convictions for civil rights violations of States prohibit public officials from democracy — that undermine the ment are accused of misconduct, the fed- these kinds. Changing the law would engaging in excessive force, sexual misAmerican promise of freedom and jus- eral government is often seen as the best allow for charges in cases where prosecu- conduct, and deprivation of needed medtice for all. That tragic incident provoked avenue for justice — to conduct a neutral tors might currently conclude that the ical care. This proposal will better allow widespread demonstrations and stirred investigation and to serve as a backstop standard of proof cannot be met. Perhaps the Justice Department to pursue justice strong emotions from people across our when state or local investigations falter. more important, it attempts to deter in every appropriate case, across the nation. I’m proud that the Justice Department potential future misconduct by acting as country. l pursued more Section 242 cases under

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