A federal criminal civil rights statute passed right after the end of the Civil War, 18 U.S.C. § 242, plays an important role in ensuring that law enforcement officers provide Fourth Amendment and due process protections when detaining any person in the United States and while that person is in custody. And while prosecutions under § 242 got off to a slow start, for decades federal case law has spelled out that those protections apply with equal force to persons unlawfully in the country and that the statute’s prohibition applies with equal force when private persons join with law enforcement officers to deprive any person of these important constitutional rights. Where some Idaho law enforcement agencies have joined with federal law enforcement agencies in immigration enforcement, and where reports in other states suggest that non-law enforcement persons have participated in immigration enforcement operations, a review of the substance and scope of 18 U.S.C. § 242 is timely and practical.

Section 242 Protects All Persons in the United States from Government Abuse

                In United States v. Otherson, 637 F.2d 1276 (9^th Cir. 1980), two United States Border Patrol agents were convicted in a bench trial of violations of 18 U.S.C. § 242 for orchestrating and participating in multiple assaults on persons believed to be unlawfully in the United States. Among the stipulated facts set out in the Ninth Circuit opinion affirming the agents’ convictions are these: (1) on July 3 and 4, 1979, when Otherson and another agent were on duty picking up persons already apprehended and transporting them by van to a processing center, Otherson and Brown, his codefendant, repeatedly struck some of the detainees with open hands, fists, and nightsticks; (2) there was no evidence as to the identities, origins, or destinations of any of the victims, nor as to the reasons for their presence in the United States; (3) there was evidence that the agents’ abuse of the individuals in their custody was part of a deliberate plan or policy, including statements from other border patrol agents that one agent asked the others, “Who’s the designated hitter?” or “Are you the designated hitter?” or a similar question; and (4) a witness stated that on July 3, Otherson told the border patrol agent trainee working with him that “we find it necessary to do things like this because the criminal justice system doesn’t do anything to these assholes.”[i]

            Section 242, first enacted in 1866 to address state actor violence against newly freed slaves, makes it unlawful for a person acting under color of any law, to willfully deprive any person in any state or territory of the United States of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. It has long been used to prosecute law enforcement officers, and those acting in concert with them, who intentionally use more force than is necessary in violation of a person’s Fourth Amendment rights when taking that person into custody.

But the Fourth Amendment right to be free from unreasonable searches and seizures is not the only constitutional right protected by Section 242 because law enforcement, correctional or detention officers who intentionally violate a detainee or inmate’s due process or Eighth Amendment rights can be prosecuted under Section 242 as well. For example, in United States v. Daniels, 281 F.3d 168, 178-79 (5^th Cir. 2002), the Fifth Circuit affirmed a conviction under Section 242 where a correctional officer removed an inmate from his cell to transport him to the jail medical clinic, handcuffed him, shackled his legs, and then began violently kicking and punching the inmate. The Court determined that an indictment charging Section 242 for a violation of an inmate’s right to be free from cruel and unusual punishment sufficiently alleged a violation of the victim’s Eighth Amendment rights.[ii] In addition, persons in official custody have a due process right to be free from harm inflicted by third persons, and an official who willfully subjects a custodial subject to a deprivation of that right by failing to intercede when the third parties assault the custodial subject is subject to criminal liability.[iii]

Although phrased in somewhat detailed terms and with a very high level of mens rea, Section 242 is at its heart a simple statute. It prohibits law enforcement officers from abusing their authority. While law enforcement officers acting under color of law can stop, detain, and arrest an individual, the consequence of that detention or arrest, including whether any punishment is appropriate, is for others in our legal system to decide.

            At their bench trial, Otherson and Brown did not contest that they had beaten persons who had been taken into custody by the Border Patrol near San Ysidro, California. Rather, they made two legal arguments. First, they argued that Section 242 did not apply to their actions as federal agents because it applied only to actions taken under color of state law, not federal law. Second, they argued that Section 242 did not protect the victims because persons illegally in the United States were not “inhabitants of any State, Territory, or District” as required by Section 242.[iv]

The Ninth Circuit rejected both arguments. It easily disposed of the defendants’ first argument, noting that it had no support in the text of the statute, which provides that “Whoever, under color of any law, statute, ordinance, regulation, or custom” without restriction to state or federal law. It also noted that the Supreme Court already had expressly rejected that argument 35 years earlier.[v]

After a more detailed analysis of Section 242’s history, the Ninth Circuit also rejected the border patrol agent defendants’ second argument. It concluded that the language and structure of the 1870 statute that amended the initial version of § 242, and the policy of interpreting statutes to “effectuate rather than frustrate their purpose”, all provided support for the interpretation that individuals unlawfully in the United States, not just citizens, were protected by Section 242.[vi] Thus, that the detainees in Otherson’s and Brown’s custody did or did not have lawful status in the United States was irrelevant. Section 242 applies to undocumented persons. Federal law enforcement agents, and those state officers who work with them, violate federal criminal law when they violate the constitutional rights of undocumented persons.

Private Actors Who Act in Concert with Law Enforcement Violate § 242

Twenty years after deciding that Section 242 applied to federal as well as state law enforcement officers, the Supreme Court made clear that when persons acting under color of law involve private actors in their conduct, those private actors also may be prosecuted under Section 242. In United States v. Price, the Supreme Court reversed an order dismissing portions of an indictment charging nonofficial or non-law enforcement participants with violating Section 242 for their role in the assault and murders of three men in Neshoba County, Mississippi in 1964.[vii] The Court held that “[p]rivate persons jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”[viii]

Price, of course, involved the murders of voting rights workers Michael Schwerner, James Earl Chaney, and Andrew Goodman, which many are also familiar with through the movie, “Mississippi Burning.” The three men were detained in the Neshoba County jail on June 21, 1964, released that evening, intercepted again by the sheriff as they tried to leave town, and transported to a place on an unpaved road, where they were met by a group of men that included law enforcement and non-law enforcement. The group of nearly twenty men assaulted, and shot and killed Schwerner, Chaney and Goodman, then buried their bodies in an earthen dam.[ix] Ultimately, seven men, both law enforcement and non-law enforcement, were convicted of federal civil rights charges.[x]

Section 242 Requires a Specific Intent to Violate the Victim’s Rights, Which Can Be Proved in the Ninth Circuit by Reckless Disregard.

The United States Attorney’s Office for the District of Idaho has concurrent authority with the Civil Rights Division (both Department of Justice components) to prosecute Section 242 violations in Idaho. The bar for such prosecutions is high. Prosecutors must prove that the person acting under color of law intentionally used more force than was necessary under the circumstances, and, as in civil lawsuits brought under 42 U.S.C. § 1983, case law provides that an evaluation of those circumstances must recognize that law enforcement officers often must make use of force decisions in mere seconds in rapidly evolving situations.[xi] Law enforcement decision-making is typically given great deference by courts and juries.

I spent the first nearly five years (1992-1997) of my practicing lawyer career as a trial attorney in the U.S. Department of Justice, Civil Rights Division, Criminal Section, and reviewed hundreds of FBI color of law investigations. At the time, although the legal threshold to charge a case was high in recognition of what was required to prove a Section 242 violation, the investigative threshold was low. If the FBI received a complaint where the facts, if true, would make out a violation of the statute, the FBI would investigate. Rarely did even thorough investigation of those complaints achieve that high evidentiary threshold to move forward, however. U.S. Department of Justice guidelines require that before seeking an indictment, a prosecutor must reasonably believe that she has sufficient evidence that will be admissible in court to obtain and sustain a conviction.[xii] Of course, to obtain a conviction, a prosecutor must prove the charges beyond a reasonable doubt, the highest standard in our legal system.

Section 242’s mens rea element poses a significant evidentiary burden on prosecutors, meaning that only the strongest, and often most egregious, cases get prosecuted. In Screws v. United States, 325 U.S. 91 (1945), the Supreme Courtheld that “willfully” meant that the statute was violated only where the defendant had the specific intent to deprive the victim of her constitutional or statutory rights.[xiii] The Supreme Court has not since revisited the meaning of “willfully” in Section 242, and the circuit courts have described the standard in slightly different terms.

In the Ninth Circuit, a defendant does not need to be thinking in constitutional terms. Reckless disregard for a person’s constitutional rights that have been made specific and definite is sufficient to prove that a defendant acted willfully.[xiv] Understandably, then, when a law enforcement encounter is rapidly evolving, and officers and agents are making split-second decisions, proving an officer or agent intentionally used more force than was necessary is difficult.

In situations where law enforcement officers and agents have clear custody and control of a detainee, or are choosing how to make an arrest in the first instance, and deliberately use more force than is necessary under the circumstances, a culpable mens rea is easier to prove. Otherson illustrates exactly this. The victims already were in custody and under control, and no evidence shows they posed any threat to the border patrol agents. The defendants’ intent to violate the constitutional rights of their victims was clear. They assaulted their detainees with the intent of punishing them, an abuse of their authority.[xv]

Otherson was decided by the Ninth Circuit only 14 years after the Supreme Court’s decision in Price. Together they make clear that federal, state, and any private actors acting in concert with them, violate federal criminal law when they intentionally deprive a person of constitutional rights. Otherson’s concluding paragraph provides a clear statement of Section 242’s important role in preserving those constitutional guarantees: “The message of this case is clear. So long as the American flag flies over United States courthouses, the federal courts and the federal justice system stand as bulwarks to assure that every human being within the jurisdiction of the United States shall be treated humanely and dealt with in accordance with due process of law by those entrusted with the power to enforce the law.”[xvi]

The District of Idaho has a history of strong civil rights enforcement, regardless of administration. Its fidelity to ensuring thorough investigation and prosecution, where appropriate, of Section 242 violations will promote respect for the rule of law and make easier the job of the vast majority of law enforcement officers who do not abuse the power they have and who understand and stay within the limits of their authority.

Wendy J. Olson is a partner in Stoel Rives’ Litigation practice. She focuses her practice on government investigations, white-collar criminal defense, civil litigation, and pro bono civil rights cases. She served in the United States Department of Justice for nearly 25 years, including five as a trial attorney in the Civil Rights Division, Criminal Section, and seven as the United States Attorney for the District of Idaho.

[i] United States v. Otherson, 637 F.2d 1276, 1277-78 (9^th Cir. 1980).

[ii] United States v. Daniels, 281 F.3d 168, 178-79 (5^th Cir. 2002).

[iii] United States v. Reese, 2 F.3d 870, 887-90 (9^th Cir. 1993) (officials charged with violating victim’s right to be kept free from harm while in custody).

[iv] Otherson, 637 F.2d. at 1276.

[v] Id., at 1278 (quoting Screws v. United States, 325 U.S. 91, 108 (1945). In Screws, Justice William O. Douglas wrote that for purposes of § 242, “[h]e who acts under “color” of law may be a federal officer or a state officer.” Screws, 325 U.S. at 108.

[vi] Id. at 1279-84. At the time, § 242 prohibited a person acting under color of law from depriving any “inhabitant” of the United States of their constitutional rights. Amendments in 1994 substituted “any person in any State . . .” for “any inhabitant of any State . . .” Pub. L. 103-322, § 320201(b).

[vii] 383 U.S. 787 (1966).

[viii] United States v. Price, 383 U.S. 787, 794 (1966).

[ix] Id. at 790.

[x] The defendants in Price also were charged with violating 18 U.S.C. § 241, a civil rights conspiracy statute also passed after the Civil War as part of the Enforcement Acts of 1870 and 1871, known colloquially as the Ku Klux Klan Acts. Section 241’s plain language makes clear that it targeted members of the Ku Klux Klan, and similar groups, who wore masks when carrying out assaults on black residents, primarily in the south, and often in groups of law enforcement and non-law enforcement. Section 241 provides that “If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . . shall be fined under this title or imprisoned for not more than ten years . . .”

[xi] See, e.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989).

[xii] Justice Manual, § 9-27.220, Comment.

[xiii] Screws, 325 U.S. at 101, 106.

[xiv] United State v. Gwaltney, 790 F.2d 1378, 1386 (9^th Cir. 1386) (citing United States v. Ellis, 595 F.2d 154, 161-62 (3d Cir. 1979); see also Reese, 2 F.3d at 881. For a recent discussion of the different “willfully” standards employed in federal circuit courts, see Aneri Shah, Reinvigorating the Federal Government’s Role in Civil Rights Enforcement Under 18 U.S.C. § 242: The George Floyd Justice in Policing Act’s Not So Reckless Proposal, 52 Seton Hall L. Rev. 1601 (2022).

[xv] Increasingly, that evidence is provided through bystander video, and prosecutors need rely less on law enforcement witnesses testifying against their colleagues.

[xvi] Otherson, 637 F.2d at 1285.