The horrifying video of George Floyd’s death, and the protests that followed, led to a rare occurrence: The police officers responsible are being prosecuted. Former Minneapolis police officer Derek Chauvin has been charged with murder and remains in jail, and three other officers are facing lesser charges.
Kentucky’s recent decision not to bring homicide charges against the officers who killed Breonna Taylor is much more typical. Most instances of law enforcement brutality do not result in criminal charges, even when they are captured on video. They often result in no consequences at all. This includes many cases of excessive force in response to the protests after Floyd’s death, but the problem is long standing, and not restricted to local police.
Border Patrol agent Jesus Mesa Jr. was not prosecuted or disciplined for shooting and killing a 15-year-old boy, and the Supreme Court ruled last year that the boy’s parents could not sue.
And the list goes on.
American society imposes harsh penalties on ordinary people accused or convicted of committing crimes, but when police officers, prosecutors, and other government officials break the law and violate people’s rights, they often get away with it. This is because individuals seeking legal redress for police brutality and other official violations of their rights have to navigate through a confusing maze of obstacles to justice.
Prosecution and Internal Discipline
Many acts of misconduct by law enforcement are crimes. Assault, aggravated assault, murder, and manslaughter are crimes under state law, and violations of civil rights by government agents are federal felonies. While there are plenty of laws against such egregious police misconduct, charges and convictions of police officers are extremely rare, even in cases of homicide. Many other acts of misconduct that do not rise to the level of a crime are subject to internal discipline, but those investigations are often toothless.
The National Police Misconduct Recording Project analyzed 8,300 credible police misconduct accusations against nearly 11,000 police officers from April 2009 through December 2010 and found that only 3,238 resulted in any legal charges. While it’s unclear if each misconduct allegation could have resulted in charges, it is indisputable that police officers who are charged have better outcomes than ordinary defendants. Of those officers charged, only 33% were convicted and only 12% were incarcerated. By comparison, 68% of ordinary felony defendants who are charged are convicted and 48% incarcerated.
The legal rules governing use of force by police and civilians are different. There are understandable reasons for this distinction, but in practice it can leave civilians with no good options for avoiding unlawful arrest or excessive force. Civilians can be charged with “resisting arrest” for disobeying police even when the arrest is unlawful and civilians resist without violence.
There is a significant difference when it comes to self-defense as well. Police officers and ordinary citizens are entitled to use deadly force in self-defense when they reasonably fear their lives are in danger. Civilians cannot claim self-defense, however, if they were the “initial aggressor” in a violent encounter; in most states, on-duty police officers cannot be considered aggressors even if their actions create or escalate a dangerous situation. Because he was an on-duty police officer rather than a civilian, Timothy Loehmann was found to be acting in self-defense when he shot 12-year-old Tamir Rice within two seconds of arriving at the park where Rice was playing with a toy gun, and did not face charges. For similar reasons the officers who killed Breonna Taylor in an unannounced raid on her apartment are not being criminally charged for her death (although former officer Brett Hankinson faces charges for shooting into a neighbor’s apartment during the raid).
Official Impunity: Will They Get Away with It?
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In addition to the different self-defense rules, law enforcement receives special procedural protections. Union contracts, local regulations, and “law enforcement bills of rights” statutes place special limits on internal investigations of police misconduct, including instituting long delays before the officers in question are required to make any statement to investigators, and providing the officers opportunities to review evidence before being interviewed. Civilian criminal defendants, by contrast, are almost never provided access to the evidence against them before they are charged, and sometimes never get discovery at all if they plead guilty.
Then there is the informal “blue wall of silence,” in which officers provide each other with cover stories, retaliate against whistleblowers, and refuse to testify against one another. The formal protections and informal code of silence reinforce each other: The delays between a use of force and an investigation provide an opportunity to coordinate testimony and pressure potential witnesses. A civilian who engaged in such coordination would almost certainly be charged with witness tampering or obstruction of justice.
As a result of all this, it is unusual for police officers with a history of misconduct to be fired, let alone prosecuted and convicted. Officers who are fired are reinstated 25% of the time or hired by another police department.
Local prosecutors also face internal pressure not to charge officers. In the words of Brown University professor Nicole Gonzalez Van Cleve and ACLU attorney Somil Trivedi, “police officers are prosecutors’ star witnesses, central to the prosecutors’ ability to earn the convictions that are so essential to their conception of public safety (and professional success).” Prosecutors may also help cover up police misconduct by, for instance, unlawfully concealing evidence of police misconduct from defendants and their lawyers. Or prosecutors may file excessive or redundant criminal charges against defendants—known as “stacking” charges—in order to pressure defendants victimized by police into pleading guilty to avoid the risk of a long prison term. Defendants who plead guilty give up their ability to challenge many forms of misconduct at trial or on appeal.
In theory, the federal government could step in when local prosecutors fail to hold police to account. The federal government has the authority to prosecute state and local law enforcement for the crime of “deprivation of rights under color of law,” and federal prosecutors do not have the same dependence on police as local prosecutors. In practice, however, the federal government’s record of holding local law enforcement to account does not inspire confidence. In part, this is because the statute that criminalizes deprivation of rights under color of law requires a higher standard of proof than in most criminal cases: Prosecutors have to prove that a defendant “willfully” violated the law, whereas in most other criminal cases prosecutors only need to show that a defendant acted “knowingly” or “recklessly.”
According to an investigation by the Pittsburgh Tribune-Review, the Justice Department declined to bring charges in 96% of the police misconduct cases it received from 1995 through 2015. For other crimes, the rate of declination was 23%. According to government statistics compiled by the Transactional Records Access Clearinghouse, from 1990 to 2019 the Justice Department filed civil rights charges against law enforcement an average of only 41 times per year. Last year, federal prosecutors brought just 49 criminal cases against law enforcement for violating civil rights out of a total of over 184,274 federal criminal cases.
Criminal charges brought against prosecutors themselves for violating people’s rights are virtually non-existent. State bar associations rarely sanction prosecutors for unethical behavior, even in cases where courts find that a prosecutor committed misconduct. The Justice Department’s Office of Professional Responsibility, which is responsible for investigating misconduct allegations against DOJ attorneys, releases so little information to the public that it’s hard to know whether prosecutors are ever disciplined as a result of its investigations.
Suits for Damages
Another option for holding officials accountable is civil law. Rather than depending on a prosecution to hold an official accountable, the victim of the misconduct can sue, and if victorious, force the person who violated their rights to compensate them for the damage. A suit for damages, unlike a prosecution, does not require one part of the government to begin legal action against another, which removes one barrier. But civil rights plaintiffs face many other obstacles.
First and foremost is the doctrine of “qualified immunity,” a defense that the Supreme Court created in the 1960s and has expanded dramatically in recent years.
The Civil Rights Act of 1871, which is codified at 42 U.S.C. § 1983, provides that anyone who uses their state or local government position to violate a person’s civil rights can be sued for damages. In 1967, the Supreme Court held that state and local police officers sued under section 1983 could raise a “defense of good faith” and “probable cause” for arrests that were later found to be unconstitutional. In other words, an officer could get a lawsuit against them dismissed by claiming that they sincerely believed they were acting properly.
Then in 1981, the Supreme Court made it even easier for law enforcement to avoid civil liability: The court held in Harlow v. Fitzgerald that rather than having to prove “good faith” at trial, public officials could get cases dismissed at an earlier stage as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
In order to show that a “clearly established” right was violated, the Supreme Court has required plaintiffs to point to a judicial precedent with similar enough facts to put “the statutory or constitutional question beyond debate,” such that “all but the plainly incompetent” would understand that their conduct was illegal.
Since the facts of every case are different, and lawyers can debate almost anything, courts have granted qualified immunity even in cases of blatant illegality. In recent years courts have ruled that law enforcement officials were entitled to immunity even when they stole hundreds of thousands of dollars; knocked a nonviolent person unconscious; shot a ten-year-old in the knee when they were aiming at a dog; sicced a dog on a suspect who had already surrendered; and locked a naked prisoner in cells covered with raw sewage and human excrement for six days. Since courts hadn’t previously said these things were obviously violations of rights, the qualified immunity doctrine meant that officers couldn’t be sued for doing them.
To make matters worse, a recent Supreme Court ruling has made it much harder to get courts on record regarding what counts as a rights violation. Before the ruling, courts would ask two questions when evaluating this kind of case: They would first see if the conduct violated a right; if they found that it did, they would then ask whether the official should have known the conduct violated the right. But in 2009 the court ruled that if there wasn’t a previous case with similar or identical facts, courts could stop their analysis right away, without even examining whether the conduct violated a right.
Since then, according to an investigation by Reuters, federal courts of appeals have dismissed an increasing number of plaintiffs’ claims without evaluating whether there was a constitutional violation. This means future litigants who sue over similar behavior are out of luck: There’s no precedent for them to point to. In the words of 5th Circuit Judge Don Willett, this creates a “Catch-22” for plaintiffs: “Plaintiffs must produce precedent even as fewer courts are producing precedent. ... Heads defendants win, tails plaintiffs lose.”
As U.S. District Judge Carlton W. Reeves noted in a remarkable recent opinion criticizing the doctrine, qualified immunity also gives government officials a major procedural advantage. Because immunity is supposed to be granted at the “earliest possible stage” of a case, “it affords government officials review by (at least) four federal judges before trial.”
It doesn’t stop there. Qualified immunity is just one of many legal theories officials can use to avoid being sued for violating people’s rights.
Another, an argument called “absolute immunity,” makes it even harder to sue prosecutors for civil rights violations than police officers. Judges have held that prosecutors are entitled to absolute immunity from civil suits for their actions on the job—even if they acted in bad faith and knowingly broke the law to secure convictions. According to federal courts, this immunity applies even to severe misconduct like “falsification of evidence and the coercion of witnesses … the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial.”
To try to avoid these immunity doctrines, some plaintiffs have attempted to sue local governments instead of individuals prosecutors or police officers. But the Supreme Court has limited those suits too. In order to sue a city for its employee’s constitutional violations, plaintiffs must show that the violation arose from the government’s “policy or custom”—and the Supreme Court has continually raised the burden of proof on plaintiffs so high that it is almost impossible to meet in practice. According to law professor Fred Smith, “It has been roughly three decades since the Court has ruled that a municipal policy caused a constitutional violation,” and in its recent history “the Court has never found that a municipal custom caused a constitutional violation.”
This includes truly egregious cases. In 2011, the Supreme Court overturned a jury award of $14 million in damages to John Thompson for his wrongful conviction by the New Orleans district attorney’s office. Thompson spent 14 years on death row after being convicted of a carjacking and murder. By chance, when Thompson was within weeks of execution, an investigator uncovered a piece of microfiche showing that the prosecution had ordered laboratory test on the bloodstains of the carjacking victim’s pant leg and shoe, and the results ruled out Thompson as a suspect. Prosecutors had knowingly hidden the blood test results and other exculpatory evidence from the defense for years, in blatant violation of the Constitution and professional ethics.
New Orleans prosecutors had a pattern of these violations under District Attorney Harry Connick Sr., and Connick acknowledged under oath that his office provided no training to prosecutors on their obligation to disclose evidence to the defense. Nonetheless, the Supreme Court held that Thompson could not prove that Connick was “deliberately indifferent” to his rights, and could not sue the district attorney’s office.
Thompson wrote afterwards:
I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.
As hard as it is to sue local officials or local governments for damages for violating the Constitution, it is even harder to sue federal officials. There is no statute equivalent to section 1983 that authorizes lawsuits against federal officials for violating constitutional rights. Although in 1971 the Supreme Court ruled in Bivens v. Six Unknown Federal Narcotics Agents that in some cases the Constitution itself implies a right to sue for serious rights violations if there was no other remedy, the court has since all but overturned that decision.
In 2017, the Supreme Court ruled in Ziglar v. Abbasi that Muslim immigrants who were rounded up after September 11, imprisoned for months in solitary confinement, and in many cases physically abused had no right to sue under Bivens. This year, in Hernández v. Mesa, the court voted 5-4 to throw out a lawsuit against a border patrol agent for shooting and killing a 15-year-old Mexican child named Sergio Adrián Hernández Güereca. This left the boy’s parents without any remedy, since the Department of Justice declined to prosecute the border patrol agent and the United States refused to extradite him to face charges in Mexico.
If the court thinks people can’t sue in these extreme cases, it’s hard to imagine what it would take for the court to allow a lawsuit against federal officials. These precedents will make it extremely difficult for nonviolent protestors to hold federal law enforcement officials accountable for violating their constitutional rights by tear gassing them in Lafayette Square in Washington DC, or shooting them in the head with rubber bullets in Portland.
(In some cases, plaintiffs can try to get around some of these obstacles to accountability by suing either individual government officials or the government itself for damages under state tort law. Those lawsuits are subject to another complex set of defenses that are beyond the scope of this article.)
There are even more ways for courts to shut their doors to plaintiffs in cases involving classified information and national security. The federal government can argue that national security cases present a “political question,” meaning that courts cannot decide them at all, or can invoke the state secrets privilege to withhold crucial evidence or entirely dismiss those lawsuits. Courts have repeatedly dismissed cases brought by victims of CIA torture, U.S. drone strikes, and government surveillance on these grounds. The government has the absolute ability to avoid any accountability by classifying its unlawful actions. Courts have not only denied plaintiffs’ requests for evidence, but cut off victims’ access to justice entirely even when much of the relevant evidence was already public.
Suits for Injunctive Relief
If government officials won’t be prosecuted for acting illegally, and plaintiffs can’t sue for damages, can they at least get a court to order the government to stop violating their rights? In theory, yes—but it’s easier said than done.
To sue the government for violating your rights, you need to have what courts call “standing”: evidence that you yourself are being harmed or will be harmed by the government’s illegal conduct. You also need to show that you are not suing either too soon (in which case, courts can dismiss the lawsuit as not yet “ripe”) or too late (in which case, courts can dismiss it as “moot”). These requirements come from Article III of the Constitution, which empowers courts to decide only “cases” or “controversies” before them.
It makes sense for courts to limit legal cases to the people whose rights are actually at stake—but often, the people who are most directly harmed by the government’s actions are in the worst position to challenge them. You can’t sue until you can find a lawyer to represent you, which is expensive and time consuming. It is also practically impossible if you’re in the midst of being beaten by the police, detained in a squalid Border Patrol holding cell, or you’ve been separated from your child and deported. If you are incarcerated, or facing deportation, you may also fear retaliation for bringing a lawsuit. To bring a lawsuit, you and your attorney will also need to gather evidence of the government’s violation of your rights, but that evidence is usually in the government’s possession.
By the time you’re in a safe enough situation to find a lawyer, gather evidence, and bring a lawsuit, it may be too late. The reason is a 1983 Supreme Court decision in City of Los Angeles v. Lyons on police chokeholds that has tragic resonance after George Floyd’s death.
Adolph Lyons was stopped for a traffic violation in 1976. Although he attempted to comply with the police, an officer put his arm around Lyons’ throat and choked him into unconsciousness. Justice Thurgood Marshall’s dissent recounted:
Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.
Los Angeles authorized police to use chokeholds in situations where suspects exhibited “resistance,” absent any evidence that officers were at risk of death or serious injury. The city trained officers that chokeholds were non-lethal, could safely be applied for several minutes, and should be continued until a subject “goes limp.” Lyons sued, and asked the courts to block the police department from implementing its chokehold policy in the future.
The lower courts issued a preliminary injunction against the policy. The Supreme Court, however, overturned it on the grounds that even though Lyons had clearly been a victim of the policy in the past, he could not prove that he was in particular danger of being choked by the police in the future. Supreme Court Justice Byron White wrote for the majority that to have standing for an injunction forbidding chokeholds, Lyons would need to allege
either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.
This was, of course, an impossible standard for Lyons or anyone else to meet. Between 1975 and 1983, 16 people died after being placed in chokeholds by Los Angeles police officers.
It can be even more difficult to establish that a plaintiff has standing in national security cases. The government has repeatedly argued that for national security reasons, it cannot disclose whether or not plaintiffs are on a government watch list, being subjected to intrusive surveillance, or on a drone “kill list,” and therefore the plaintiffs cannot prove that they have suffered any injury at all. Since September 11, these arguments have succeeded more often than not.
Because lawsuits seeking injunctions can take years to make their way through the courts, plaintiffs often seek preliminary injunctions—orders that take effect while a case is still ongoing. But the Supreme Court has been increasingly likely to step in to prevent lower courts’ preliminary orders from taking effect, often without any argument or written explanation.
If an individual who is wrongfully convicted or imprisoned by the government has no other remedy, can they at least get out of jail?
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For individuals jailed or facing execution by the government, their last, best hope of a remedy is the writ of habeas corpus, which a court can use to order the release of someone who is unjustly imprisoned. Habeas corpus, sometimes known as the “great writ,” is centuries older than the United States, and is one of the only individual rights guaranteed in the original text of the Constitution (even before the Bill of Rights). It allows people whose liberty has been taken away by the government to go to court and claim that they are being held illegally—for instance, because they are innocent, or their rights were violated at trial or during their initial appeals in state court. Habeas is supposed to apply to all people detained by the government, whether at the state or federal level, and regardless of their citizenship status.
But Congress seriously weakened habeas corpus in 1996, when it enacted the Antiterrorism and Effective Death Penalty Act, or AEDPA. Under AEDPA, as summarized by journalist and criminal justice expert Radley Balko, in order to get a new trial based on new factual evidence, a defendant
must show that he has new evidence; that the evidence he has could not have been discovered at the time of trial; that the new evidence would likely result in a different verdict; and … must file his claim based on the new evidence within one year of the time that evidence could reasonably have been discovered.
Federal courts presume that state courts’ findings of facts are correct unless a prisoner shows by “clear and convincing evidence” that they are wrong. In most cases, prisoners must meet this standard without any right to an evidentiary hearing, where a court can uncover new facts and add them to the record of a case. In other words, prisoners have to meet an incredibly high bar with evidence they gather on their own—usually while they’re in prison. Courts also cannot review issues that a plaintiff failed to raise in state court, even if a defendant had to challenge their conviction without a lawyer’s assistance.
It is also not enough to show that state courts got the law wrong when they upheld a defendant’s conviction. Under AEDPA, courts cannot grant the writ unless a state’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” The Supreme Court has interpreted this to mean the writ should be denied even if a state court’s interpretation is incorrect, or even clearly in error, and granted only if “there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with this Court’s precedents.”
As a result of these restrictions, the number of habeas petitions granted in federal courts has dramatically declined, in both death penalty and non-capital cases. AEDPA has prevented prisoners with strong claims of actual innocence from challenging their convictions.
The odds of overturning a wrongful conviction are even lower when a prisoner pleads guilty, as many victims of police abuse and prosecutorial misconduct do. Many states limit a defendant’s ability to obtain DNA testing to prove their innocence after a guilty plea.
There are also limits on habeas corpus in cases where individuals are detained without being convicted of a crime. Terrorism suspects at Guantánamo Bay were denied access to the courts for years, and when they were finally granted habeas corpus review of their detention, it was under rules that made it virtually impossible for prisoners to win release.
Another law passed in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act, limits habeas rights for non-citizens facing deportation. The law created a procedure called “expedited removal,” in which a non-citizen can be deported without a hearing, a lawyer, or any judicial review if they have not “affirmatively shown, to the satisfaction of an immigration officer,” that they have been present in the United States for at least two years immediately prior to detention. The Supreme Court recently upheld the constitutionality of the expedited removal statute, and the Trump administration is seeking to drastically expand its use nationwide.
Conclusions and Recommendations
Many police departments around the country use the motto “to protect and to serve,” or some variation of it. Prosecutors act in the name of “the people.” Their professional standards require them to “seek justice,” not only conviction, and to scrupulously protect the rights of the accused. The Supreme Court has the words “equal justice under law” inscribed above its entrance. Executive branch officials, from the president on down, take an oath to defend the Constitution.
In practice, though, our institutions are simply not living up to those words. Too often, government officials have violated people’s rights with impunity—particularly the rights of Black Americans, immigrants, and other minority groups.
There is no one simple fix for these problems, and many of the most crucial changes need to be made at the state and local level. That said, there are some essential steps Congress and the executive branch should take.
1. Congress should end qualified immunity.
2. Congress should amend 42 U.S.C. § 1983 to create a cause of action against federal officials who violate individuals’ rights.
3. Congress should pass legislation that authorizes lawsuits against police departments, prosecutors’ offices, and municipal governments for their employees’ violations of individual rights.
4. Congress should pass legislation that gives the Justice Department’s civil rights division subpoena power in its investigations of whether law enforcement agencies have engaged in a “pattern or practice” of violations of constitutional rights.
5. Congress should amend the criminal prohibitions in federal civil rights laws to allow conviction of an official who deprives an individual of their rights intentionally or recklessly, rather than “willfully.”
6. Congress or the executive branch should require the compilation and release to the public of information about deaths in custody, uses of deadly force by law enforcement, and misconduct by law enforcement agents and prosecutors.
7. Congress should repeal the limits on habeas corpus in the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
8. Congress should enact legislation limiting the state secrets privilege by requiring disclosure of relevant classified evidence to judges and to opposing counsel who have the requisite security clearance, and by limiting the use of the privilege where its invocation would shield crimes or constitutional violations from judicial review.
9. Congress should pass legislation authorizing the Justice Department inspector general to investigate allegations of misconduct by Justice Department lawyers, and report any findings of misconduct to state bar associations.
10. The U.S. attorney general should order the Justice Department’s criminal division to protect the rights of criminal defendants, by:
a. reducing the overuse of pretrial detention in federal cases;
b. ensuring that all guilty pleas are knowing, voluntary, and made with the effective assistance of counsel;
c. adopting formal policies regarding prosecutors’ constitutional and ethical duty to timely disclose favorable evidence to the defense; and
d. improving oversight over detention conditions in federal prisons and in private and local jails holding detainees for the U.S. Marshals Service.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.