Georgina Yeomans worked in the Civil Rights Division as a paralegal and is now in her final year at Columbia Law School. William Yeomans worked as an attorney and senior official in the Justice Department’s Civil Rights Division for 24 years. He is now a fellow in law and government at American University’s Washington College of Law.

Chances are that police officers in Ferguson, Mo., and Staten Island, N.Y., won’t face federal charges for the deaths of Michael Brown and Eric Garner. If this strikes you as a travesty of justice, don’t blame grand juries. Or investigators. Or prosecutors. Blame Congress and the courts.

That’s because any federal investigation of this type is governed by a vaguely worded, 149-year old statute that has been repeatedly narrowed, weakened and made confusing over the years by lawmakers and judges. It has been used periodically to bring to justice defendants that the states either did not want to charge or were unable to prosecute successfully. Think: violent white supremacists of the 1960s or the Los Angeles police officers who pummeled Rodney King. These are often uncertain endeavors and they often fail—or even fail to materialize—because of the weakness of the law. It need not be this way, but only Congress can change that—and it should—to create a statute that balances the rights of individuals with the needs of police officers to perform their difficult and dangerous jobs.


The law in question was first enacted in 1866, reenacted in 1870 and modified in 1874 during Reconstruction primarily to protect newly freed slaves from violence and other abuses committed by states. It is not specific to police officer misconduct. As with other Reconstruction legislation, it fell into disuse as a result of restrictive judicial interpretations and a lack of zeal in its enforcement.

The law opens to prosecution anyone who “under color of any law . . . willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . .” A narrow reading of what constitutes “color of law” and an anemic view of the rights protected by the Constitution rendered the statute ineffective. Congress revisited the law in 1909 to water it down further by requiring prosecutors to prove that defendants acted “willfully.” And it amended it in 1968, 1988, and 1994 to increase its penalties without changing its substance.

It was not until 1945 that a divided Supreme Court in the case of Screws v. United States restored some life to the law by finally making it clear that the fatal beating of an African American man by a Georgia sheriff and two officers were actions taken “under color of law.” But in applying the statute for the first time to the prosecution of violent law enforcement officials, the high court made it still tougher to charge and convict police officers. That’s because the statute requires the federal government to show that the police officer acted with the specific intent to deprive the victim of a federally protected right. The intent requirement places the difficult burden on prosecutors to prove what the officer was thinking. Courts have said that prosecutors don’t need to show that the officer fully understood the right that was in jeopardy. It is sufficient that the officer knowingly engaged in conduct that violated a right, but only if the right had previously been clearly established.

Crystal clear, right? No wonder the statute remained little used until the 1960’s when the Justice Department prosecuted southern law enforcement officials, still with limited success. For instance, according to the Attorney General’s annual report in 1966, there were 12 trials involving the statute that year, but zero convictions. Similarly, the Justice Department convened a grand jury to investigate the beatings in Selma in 1965, but the grand jury refused to indict.

Anyone who can make sense of this convoluted standard is far ahead of most of the jurors who have had to grapple with it. In the most common cases in which officers are charged with using too much force, the standard has been simplified to require a showing beyond a reasonable doubt that the officer intentionally used more force than was reasonably necessary under the circumstances. Reasonableness is to be determined based on all of the circumstances that confronted the officer at the time—a standard that leaves officers considerable leeway. This leeway is expanded by the fact that allegations of excessive force often turn on the victim’s word against the officer’s. It bears repeating—if only because so many purportedly knowledgeable commentators keep getting it wrong—that the government does not need to prove racial animus as an element of the crime.

Determinations of what the law means and how it can be applied have all been made by judges. At this point the law bears only a distant relationship to the words of the statute and has little to do with the protection of newly freed slaves that Congress sought to ensure in the late 1800s. Congress has never stepped in to clarify the standard that should apply in the specific context of prosecutions of police officers. It should do so; police officers, courts and juries deserve clear standards to govern their behavior and guide their decisions.

Leaving the statute as is also fails to clarify when the federal government can or should step into such cases. Traditionally, principal responsibility for prosecuting crime has rested with the states. In most instances, the federal government has served a backstop role, stepping in only where a readily identifiable federal interest has been left unvindicated by the state criminal system.

Since the Supreme Court’s Screws decision, it has been accepted that the use of excessive force by police officers implicates a substantial federal interest in protecting constitutional rights. The frequency of federal intervention should rest on two sets of factors: (1) the zeal and competence—or lack thereof—with which state prosecutors pursue excessive police violence, and (2) the tolerance that the public has for police uses of force. The re-examination of existing law should address both of these factors. It should examine whether states are doing an adequate job of regulating their police forces, including whether the relationships between local prosecutors and the police they work with make prosecutions too unlikely. Congress should examine state standards for prosecution of police officers and the manner in which those standards are applied. And, Congress should take and reflect the political temperature of the American people regarding their tolerance for police use of force. This is a complex and serious undertaking, but it is an essential element of the national discussion so tragically, but necessarily launched by the deaths of Michael Brown and Eric Garner.

Congress should approach these large issues with an open mind.

For instance, Congress could create a new federal criminal law that applies specifically to police misconduct. In doing so, Congress, for the first time, could debate the appropriate balance between protecting civil rights and deference to officers. It could revisit the mental state required for conviction, including the provision of varying levels of culpability, similar to state laws that criminalize not only intentional homicides, but also manslaughter. This would give the federal government authority to pursue officers who were not acting with the high level of willfulness required by current law, but who were acting with disregard for the life of their victim and in clear dereliction of their duty to protect and serve. It would also allow federal prosecutors to more easily step into the role traditionally played by state prosecutors, who often have conflicts of interest in these cases because they often work so closely with police. Clarifying the standard applicable to police officers would also provide clear guidance for officers and juries.

There are many reforms related to modern policing that Congress should consider—including improved data collection, mandatory federal review of police shooting incidents, incentives to use independent counsels, and resources for body cameras and other important policing reforms. But many of these potential reforms would be meaningless without Congress’s determined effort to evaluate the federal law that would govern action in instances of possible police abuse.

We do not at this point endorse any particular legislative remedy. It is clear, however, that the one major institution of American life that is absent from the debates fueled by the Ferguson and Staten Island police-involved deaths is the one that should play the leading role in determining what the law should be. Congress has the power to summon the expertise, resources and leadership to take on this issue. Because police officers, prosecutors, and potential victims of excessive force stand to benefit from a more clearly defined legal standard, partisan gridlock should not be allowed to stymie this effort.