Police Officers Rarely Charged for Excessive Use of Force in Federal Court
Despite growing popular unrest and media attention in recent years over excessive use of force by police officers, the latest available case-by-case data show that federal prosecutors rarely bring relevant criminal charges known as "deprivation of rights under the color of law" (18 U.S.C. 242) against law enforcement. In the first seven months of FY 2020, federal prosecutors filed § 242 charges in just 27 cases. In April 2020, just a month before the death of George Floyd sparked civil unrest, federal prosecutors did not report prosecuting a single case with § 242 as the lead charge.
Results reported here are based upon referral-by-referral government records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. TRAC obtained these records after lengthy litigation under the Freedom of Information Act (FOIA).
What Is § 242 and How Does It Relate to Police Use of Force Violations?
Charges under § 242 are most often used in cases involving excessive use of force by police. Yet they are also relevant in cases broader than police, such as cases of excessive violence by a prison guard, and cases where an individual acting "under the color of law" commits a robbery, theft, or sexual assault. Most § 242 cases are first investigated by Federal Bureau of Investigation (FBI) agents or another federal agency, then referred to U.S. attorneys within the Department of Justice who have discretion over whether to prosecute[1]. Often the FBI investigates because they get referrals from others, including state and local officials.
Although charges under § 242 are rare, they often form the legal basis in cases where police use of force is in question. For instance, after the police officers involved in the arrest of Rodney King in 1991 were acquitted by a Los Angeles County jury, federal prosecutors charged and ultimately convicted the officers with the federal crime of depriving Mr. King of his civil rights while acting "under the color of law" (i.e. in their capacity as police officers). After an investigation into the death of Eric Garner, the Department of Justice determined that there was "insufficient evidence" to prove that police officers violated Garners rights under § 242. More recently, in late 2019, the Department of Justice announced that a federal jury convicted St. Paul officer Brett Palkowitch under § 242 for "using excessive force against an unarmed civilian."
Although federal prosecutors can bring criminal charges under § 242, individuals can also bring civil lawsuits against the government under 42 U.S.C. 1983, which similarly covers deprivation of civil rights by individuals acting under the color of law. We do not address § 1983 cases in this report.
Number of Prosecutions Under § 242
Altogether in FY 2019, federal prosecutors brought § 242 charges in just 49 cases in the United States. This compares with 184,274 total federal prosecutions last year. Thus, these cases represent just a minute fraction of offenses that are prosecuted—only 27 out of every 100,000 prosecutions or 0.027 percent.
By comparison, federal prosecutors brought 69,536 cases for the petty offense of illegal entry as the country focused on immigration enforcement, often to the detriment of attention given to other types of offenses[2]. But prosecutions for other types of matters also outpaced those under § 242. During FY 2019 there were 467 prosecutions for simple drug possession, and 119 prosecutions for illegally taking fish, wildlife and migratory birds.
In fact, in the twenty-year period between 1990 and 2019, federal prosecutors filed § 242 charges about 41 times per year on average, with as few as 19 times (2005) and as many as 67 times in one year.
1990—2019.
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Rate of Referrals that are Prosecuted Under § 242
However, federal prosecutors receive at least ten times more criminal referrals than they prosecute. Nine out of ten are turned down—that is, closed without filing any prosecution. In FY 2019, federal prosecutors pursued just 11 percent of referrals, which is among the very lowest prosecution rates, near the rate of hate crimes prosecutions (10%) and obstruction of criminal investigations (9%).
Historically very few referrals under § 242 are actually prosecuted by the Department of Justice. Between 1990 and 2006, the percent of referrals that federal attorneys prosecuted never rose above three percent. A driving force behind the declination rate appears to be not the standards used by federal prosecutors for filing prosecutions, but the standards used by the FBI in deciding whether to refer a case to federal prosecutors. Between 2006 and 2019, as the number of referrals declined, the percent of referrals that were prosecuted increased. Yet this did not result in a marked increase in the total number of prosecutions each year. The highest year on record, 2008, saw 67 total § 242 prosecutions, but no year since has come close.
Footnotes
[1] For more information, see Johnson, B., and Bridgmon, P. (2009) "Depriving Civil Rights: An Exploration of 18 U.S.C. 242 Criminal Prosecutions 2001-2006." Criminal Justice Review 34 (2):196-209.
[2] See, for example, "Stepped Up Illegal-Entry Prosecutions Reduce Those for Other Crimes" at https://trac.syr.edu/immigration/reports/524/ and "Drug Prosecutions Drop to Historic Lows Under Trump" at https://trac.syr.edu/tracreports/crim/475/.
TRAC offers free monthly reports on program categories such as white collar crime, immigration, drugs, weapons and terrorism and on selected government agencies such as the IRS, FBI, ATF and DHS. For the latest information on prosecutions and convictions, go to https://trac.syr.edu/tracreports/bulletins/. In addition, subscribers to the TRACFed data service can generate custom reports for a specific agency, judicial district, program category, lead charge or judge via the TRAC Data Interpreter.