Cops have civil rights, too.
Cops have civil rights, too.
T he monthlong federal civil-rights trial involving Minneapolis ex-cops implicated in George Floyd’s 2020 death is wending toward its conclusion. On Monday, the defense rested, but only after all three defendants testified. The case will now proceed to closing arguments and jury instructions — and the latter are more critical in civil-rights cases than they are in most criminal prosecutions.
In a recent column, I criticized the Justice Department’s theory of the case, which brings into sharp relief the vagueness of the relevant statute, Section 242 of the federal penal code. The Justice Department, whose authority is limited to enforcing statutes as Congress has written them, has been exploiting this ambiguity to, in effect, legislate new crimes — prohibiting not only police acts but police omissions.
To recap, the Supreme Court addressed the vagueness of the Section 242 offense (then codified in a different federal statute) in Screws v. United States (1945). The Court lamented that Congress had not been “specific and definite” in describing with precision the federal rights that state officials were prohibited from denying. The justices undertook to save the statute from constitutional infirmity by requiring exacting proof of willfulness, the criminal-intent element. The idea was that this would limit the law’s reach to the deprivation of only those federal rights that were so well-established and well-known that state officials — including police — must be presumed to have known they were federal rights.
Flash forward to DOJ’s indictment of the ex-cops in the George Floyd case. In Counts One and Two, prosecutors allege deprivation of Floyd’s right “to be free from an unreasonable seizure.” The source of that right, clearly, is the Fourth Amendment — so far, so good. Count One charges that this right was violated by former officer Derek Chauvin’s use of excessive force. This, too, is easy enough to grasp: The arrest (in Fourth Amendment terms, the seizure) was unreasonable because, to effect it, Chauvin used far more force than the situation called for.
In Count Two, though, it gets more attenuated. Two other ex-cops, J. Alexander Kueng and Tou Thao, are charged with violating Floyd’s Fourth Amendment right to be free from an unreasonable seizure, not by using unreasonable force, but by willfully “fail[ing] to intervene to stop Defendant Chauvin’s use of unreasonable force.”
I won’t belabor my quarrel (explained in the prior column) with the Justice Department’s factual theory for distinguishing Chauvin’s conduct from that of the other officers. Let’s just stick with the prosecutors’ legal theory. In bare-bones fashion, they say the crime was Kueng and Thao’s omission to act in prevention of Chauvin’s brutality against Floyd.
To be clear, I am not endorsing police passivity when other cops act badly. It should be a firing offense if the misconduct is serious enough. There are, moreover, many instances in which a public official (in statutory terms, one who has “under the color of law” status) does indeed have an affirmative duty to act in order to uphold the laws — even if a private person, who has no such duty, could with impunity refrain from taking helpful action. (Note: Our concern here is the civil and criminal law. While it is often a failure of morality, conscience, or decency for a person not to lift a finger to be helpful, our focus is legally actionable omissions.) Certainly, a state would be justified in making it a civil or even a criminal offense for a public official, including a police officer, to fail to act under circumstances where duty clearly called for action. That would include the failure to act to prevent another officer from violating a police rule, a regulation, or a law. Constitutional caveat: Because omissions are inherently more ambiguous than actions, a penal statute that criminalized the failure to act would have to be clear and specific in describing kinds of malevolent police misconduct that would trigger a duty to respond with preventive action.
The Justice Department, however, is not claiming to be enforcing a legal provision that explicitly criminalizes omissions. To the contrary, DOJ is claiming that the Fourth Amendment to the United States Constitution prohibits not only the use of force that is so excessive that it renders a seizure unreasonable, but also the omission of action to prevent such uses of force by others. The Fourth Amendment says no such thing. Nor does Section 242, the statute under which the ex-cops are charged. The indictment does not cite any provision of federal law that purports to spell out such an individual federal right against police passivity.
Now, the usual progressive response to such an argument is to claim that so-called substantive due process fills in the gap here — that the Fourth Amendment’s emanations form penumbras from which we can tease out an implied “duty to prevent” acts that are expressly proscribed. That won’t work here for at least three reasons.
First, even if this “duty to prevent” concept sounds reasonable, especially in the context of a horrific scenario such as Floyd’s death by asphyxiation over a period of nine minutes, such a requirement would be unusual. The law ordinarily does not require police to act at all.
Again, we are talking here about what must be done, not what should be done. We might all agree that it would be shameful for a cop to stand there and do nothing while a gang member appeared to be physically intimidating an old lady — although you might feel differently about that if you were a cop who’d become convinced that a progressive prosecutor, with perfect 20-20 hindsight and zero street experience, might charge you with assault if you used reasonable force to arrest the gang member. As a rule, though, states and municipalities are obliged to provide police protection for the community at large; that does not mean individual cops are obliged to take protective action on behalf of particular people. An individual, for example, generally has no right to sue a city because the police failed to respond quickly or adequately to a call for help — even if the person can prove that the police were in a position to respond and could have prevented or mitigated the harm.
Second, as I said in the above-linked column, under settled constitutional law, a criminal statute is void due to vagueness if it is insufficiently clear and definite to put a person of ordinary intelligence on notice of what is forbidden. This was the Screws Court’s objection to what is now Section 242. There is nothing clear and definite about rights excavated or concocted via substantive due process. SDP is an “oxymoron” (as Justice Antonin Scalia put it), which is posited as a legal theory that procedures (i.e., how rights are protected) have substantive content (i.e., they define the rights that warrant protection). Another great constitutional originalist, Justice Clarence Thomas, has observed that “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness.” Thankfully, SDP has fallen into enough disrepute that courts are more restrained than they once were about exploiting it to rationalize new “constitutional” rights they like to create.
The third reason is more concrete than theoretical. Count Three of the indictment explicitly cites “due process of law” as the source of what it claims to be yet another constitutional right of which Floyd was deprived — “the right to be free from a police officer’s deliberate indifference to his serious medical needs.” There is no mention of “due process” in Count Two. Plainly, if prosecutors were relying on the Due Process Clause as the source for what Count Two supposes is a right against police failures to act preventively when another officer is brutalizing an arrestee, they would have said so, as they did in Count Three.
On this subject of prosecutors’ creating civil rights, another case recently trumpeted by the Justice Department is instructive.
In early February, a former Alabama Corrections Department officer, Willie M. Burks III, was sentenced to nine years’ imprisonment for failing to prevent an officer under his command from using excessive force against an inmate. The inmate, identified only as “C.H.,” had brought contraband into the prison, but he was handcuffed and not resisting when Burks’s subordinate, Sergeant Ulysses Oliver Jr., beat him with fists, feet, and a baton.
It was a gruesome assault. One could easily see Burks being charged by state prosecutors for the crime of assault, on an aiding-and-abetting theory. That is, Burks was in command when the beating happened; he could have ordered his subordinate, Oliver, to desist; so implicitly, the beating happened under Burks’s direction. By the standard definition of aiding and abetting, a person is culpable for a criminal act if he commands that it be done by a third person (or otherwise counsels, induces, or procures the criminal act’s doing). It would also make sense if Alabama and other states were to enact laws making passivity by a superior state officer under the circumstances of this assault a civil tort or a criminal offense.
But in Burks’s federal case, we are not talking about a criminal-assault prosecution or civil lawsuit based on a state statute that clearly makes passivity actionable. Burks was subjected to a civil-rights prosecution. So then, what federal right did the Justice Department claim C.H. was deprived of by Burk? The indictment cited a right “to not be subjected to cruel and unusual punishment by one acting under color of law” — i.e., the Eighth Amendment to the U.S. Constitution.
Now, if this were a civil-rights case against Oliver, who savagely beat C.H., one could understand such an allegation. But as for Burks, the indictment does not claim that he used force at all (much less excessive force); nor does it accuse him of administering cruel and unusual punishment to C.H. Nor is it alleged that Burks aided and abetted Oliver (there is no citation to the federal aiding and abetting statute). Instead, the indictment contends that C.H. had a federal right, apparently derived from the Eighth Amendment, to have Burks prevent Oliver from acting.
Now, our human instinct is to shed no tears for Burks. His dereliction of duty was condemnable. He showed no compassion for the inmate. Because he was the commander, we see him as responsible for what Oliver, his subordinate, actively did. But bear in mind, he was not charged with that. He can properly be convicted only based on the formal charge in an indictment, not based on our assessment of his character. According to the indictment, his civil-rights crime was failure to intervene.
A little more on the matter of why we should care about Burks’s case, and about civil-rights prosecutions in general. In these cases, we are not dealing with situations in which, if the federal government fails to prosecute, public officials will escape justice. In civil-rights prosecutions, the federal government is empowered to subject an accused to a second prosecution for the same conduct the state can prosecute (and often has already prosecuted). Generally speaking, a police or corrections officers who uses excessive force — or aids and abets in its use — will be prosecuted by state authorities for assault, or attempted murder if the assault is sufficiently serious, or murder if death results. Then, the federal government is permitted to bring a second prosecution, based on the exact same evidence, on the theory that the assault deprived the victim of some supposedly well-established federal right.
How ironic that such successive prosecution is carried out under the rubric of civil rights. A bedrock of Anglo-American civil rights is double-jeopardy protection. A person’s right not to be twice put in jeopardy of life or limb is certainly a more fundamental right than, say, the newfangled “right to be free from a police officer’s deliberate indifference to one’s serious medical needs.” Yet the Justice Department’s Civil Rights Division runs roughshod over the former, fundamental civil right in order to vindicate the latter, dubious civil right.
This is constitutionally permissible because of so-called dual sovereignty: Technically, the prosecuting sovereigns — federal and state — are different. Nevertheless, from the standpoint of the accused, the fundamental harm he suffers is from being subjected to multiple prosecutions for the same criminal conduct; it makes no difference to him whether the subsequent prosecution is by the federal or the state government.
That being the case, it should not be too much to ask that the Justice Department state with clarity the federal right that a victim has allegedly been denied, including the specific source of that right — whether it is the Constitution, a statute, or some other species of law. The accused and the rest of us should not be left to guess — is it the Fourth Amendment, the Eighth Amendment, the Due Process Clause, or something else?
I do not believe that is what the Biden Justice Department is doing. Instead, the Civil Rights Division is inflating what progressives see as best policing practices — e.g., that a police officer must take action to prevent another officer’s brutality (especially in a racially fraught case), and that a police officer must provide some minimum quantum of medical attention — as if those best-practice guidelines were actually constitutional rights. And DOJ is doing this in the absence of any congressional action. There is no law from which we could say that the Biden administration’s preferred practices have been codified into statutory rights. The prosecutors are simply making it up.
The Section 242 civil-rights crime prescribes the death penalty, life imprisonment, or a sentence of up to ten years, depending on the extent of bodily injury a victim suffers due to an alleged deprivation of rights. If penalties of such severity are going to be imposed, not just for violent police acts but for police omissions, then there must be a higher obligation on the Justice Department to spell out, in the indictment, exactly where it is stated in federal law that a police officer must take the action that prosecutors accuse him of omitting. Not in a Biden-preferred policing-practice manual; in an actual federal law. If there is no such federal-law provision, the Justice Department should be required to state, in the indictment, from what source it is deriving this duty to take action (is it a court decision, a presidential speech, a Justice Department memo?). Finally, to satisfy the criminal-intent requirement, prosecutors should also be required to state their basis for alleging that this duty is so well-established that the police officer’s failure to act must have been willful.
It is rudimentary constitutional law that an accused must be given notice of the crime charged. Cops have civil rights, too.