Paul Savoy0

Abstract

A deeply flawed eighty-six page legal memorandum revealed the rationale for the U.S. Justice Department’s March 2015 decision not to prosecute Ferguson police officer Darren Wilson. The Article rejects the Department’s contention that prosecution was not permitted by the governing law and explains why the failure to indict was supported by neither the law nor Wilson’s own grand jury testimony.

Screws v. United States (1945), the leading Supreme Court decision on the requirements for a civil rights prosecution, and the principal authority on which the Justice Department relied, has been widely misinterpreted. The Article explains how Screws, when considered in light of the Court’s more recent, but much-neglected opinion in Lanier v. United States (1997), does not pose as high a hurdle to civil rights prosecutions as most lower federal courts and civil rights lawyers, including prosecutors in the Justice Department, have long believed. The Article seeks to elevate Lanier to its rightful place at the center of the constitutional canon governing civil rights prosecutions and proposes legislation that would codify its lower standard of proof, with the aim of reviving the criminal sanction as the only effective remedy for bringing justice to the families of men and women of color slain by unconstitutional police violence.

I. Introduction

It has been almost fifty years since the Kerner Commission concluded, in the antiquated language of its time, that riots in twenty-three cities during the summer of 1967 were triggered in part by “a widespread belief among Negroes in the existence of police brutality and in a ‘double standard’ of justice and protection—one for Negroes and one for whites.”1 While policing has not been without progress, little has changed in terms of the frequency with which African Americans have been killed in officer-involved shootings. Beginning with the fatal shooting of eighteen-year-old Michael Brown in Ferguson, Missouri on August 9, 2014, there were so many high-profile killings by white police officers of unarmed young African American men2 in the next eight months, causing riots in Ferguson and Baltimore and mass demonstrations in dozens of other cities, that President Obama called the homicides a “slow-rolling crisis.”3

When St. Louis County Prosecuting Attorney Robert McCulloch failed to obtain an indictment against the Ferguson police officer who killed Michael Brown,4 protestors were so convinced by now-discredited witness accounts that Brown’s hands were in the air when he was shot to death, that the slogan “Hands Up, Don’t Shoot” and the gesture of hands up, palms out became a national symbol of outrage.5 Indeed, Ferguson has since taken on the iconic significance of cities like Montgomery and Selma in the pantheon of historic places in the civil rights movement. Most prominent among the other uncharged officer-involved shootings that followed Ferguson are the chokehold death of Eric Garner in Staten Island;6 the fatal shooting of twelve-year-old Tamir Rice in Cleveland as he played with a replica of a semi-automatic pistol;7 the killing of John Crawford III while holding a BB/pellet air rifle he had picked up off a shelf while shopping at a Walmart in a suburb of Dayton Ohio;8 and the death of seventeen-year-old Laquan McDonald, who was shot sixteen times by a Chicago police officer indicted for first degree murder only after a dashboard camera video of the incident—released 400 days after the shooting and only in response to a court order—showed that, contrary to police reports, McDonald, who was carrying a three-inch folding knife, did not attack or otherwise threaten the officer.9

Almost two years after the death of Michael Brown, a deadly series of events, all occurring within a period of less than two weeks, demonstrated how horrific the crisis had become.10 Alton Sterling was killed while he was selling CDs outside a convenience store in Baton Rouge, Louisiana,11 and the very next day, Philando Castile was shot and killed, the aftermath of which was captured in an extraordinary video live-streamed on Facebook by his fiancée as he lay bleeding to death beside her during a traffic stop in a suburb of St. Paul, Minnesota.12 These devastating events were quickly followed by retaliatory killings of police officers by African-American gunmen, first in Dallas13 and then in Baton Rouge.14 The shock and grief felt by all Americans brought a measure of reflection and restraint to the debate about race and policing, as President Obama, in a poignant eulogy at a memorial service for the five slain Dallas officers, called for empathy and unity.15 Yet the murders of so many police officers may have irrevocably changed the context in which the national conversation about police accountability will continue, as law enforcement officials feel increasingly embattled, while civil rights activists express growing impatience with conversations that result in little meaningful change.16 The public attention generated in the last two years by the riots in Ferguson and Baltimore and by nonviolent protests in cities across the nation, along with the increasing availability of video evidence recorded by cell phones and body cameras, have begun to reverse the almost complete immunity of police officers from prosecution.17 The number of police officers charged with murder or manslaughter for on-duty shootings in 2015 was more than three times the yearly average for the preceding ten years.18 However, few of those recent prosecutions have resulted in convictions.19

Even as police officers begin to be charged by local prosecutors, the problem of unwarranted police immunity seems to have migrated to a most unlikely place, making its appearance at the highest level of law enforcement in the nation. Despite a scathing report released by the U.S. Department of Justice on March 4, 2015, finding systematic racial bias in the Ferguson Police Department and “a pattern of unconstitutional policing,”20 then-Attorney General Eric Holder, on the same day, issued another report, in the form of an eighty-six-page legal memorandum, explaining the decision not to convene a federal grand jury to indict Ferguson police officer Darren Wilson for depriving Michael Brown of his civil rights.21 Although the Justice Department Memorandum makes a convincing case for concluding that Brown did not have “his hands raised in an unambiguous signal of surrender” when he was killed,22 and the decision not to indict was widely accepted as a laudable exercise of prosecutorial discretion,23 a careful reading of the document reveals a process of legal reasoning so deeply flawed as to cast serious doubt on its validity.

It would not be accurate to say that the Justice Department whitewashed the killing of Michael Brown. A whitewash involves a bad-faith effort to cover up incriminating evidence. What is fair to say is that the authors of the Memorandum acted with as much good faith as lawyers frequently act in ignoring or minimizing the evidence and the law against them, and exaggerating the evidence and the precedents in their favor. This is what the legal profession calls “zealous advocacy.” The problem with the Memorandum is the absence of any advocacy at all on behalf of the prosecution. The Memorandum reads like a brief written for the St. Louis Police Officers’ Association. In deciding whether to indict, prosecutors are supposed to assess the evidence and the law in the light most favorable to the government, not in the light most favorable to the defendant,24 which is how Justice Department lawyers consistently viewed both the law and the facts in the Memorandum. By discrediting evidence and failing to consider judicial precedent against Wilson while exaggerating evidence and judicial precedent in his defense, the Justice Department acted so zealously on behalf of the accused that it breached its legal responsibility to vindicate the civil rights of the victim.

This Article concludes, first, that even if all of Wilson’s testimony before the St. Louis County grand jury is accepted as true and the evidentiary conflicts are resolved in his favor, there was sufficient evidence for the County prosecutor to obtain an indictment and conviction for manslaughter, and for a federal grand jury to indict Wilson for depriving Brown of his Fourth Amendment right to be free from the unreasonable use of deadly force. Second, while there is a higher bar to a federal civil rights prosecution than a state prosecution because of the necessity of proving that Wilson not only violated Brown’s Fourth Amendment rights, but that he did so “willfully,” the Justice Department’s conclusion that “seeking his indictment is not permitted by . . . the governing law”25 is supported by neither the law nor the evidence.

Part I presents a statement of facts that in all but one respect26 adopts the Memorandum’s narrative of the evidence, which credits virtually all of Wilson’s testimony as well as most of the other witness accounts and forensic evidence supporting his story. Part II reviews the Justice Department’s legal analysis. Section A questions the validity of the Department’s argument that Wilson’s use of deadly force was reasonable, challenging the Memorandum’s interpretation of a line of cases decided by the Court of Appeals for the Eighth Circuit (which includes St. Louis, Missouri, where the case would have been tried had Wilson been indicted) to support the argument that, even if Wilson could have subdued Brown without killing him, this fact was not relevant to determining the reasonableness of his use of deadly force. The Section concludes that (1) Eighth Circuit precedent permits a jury to consider the availability of less lethal options in determining the reasonableness of an officer’s use of deadly force; and (2) the question whether Wilson violated Brown’s Fourth Amendment rights by failing to use his mace to subdue and arrest Brown and instead resorting to deadly force should have been left to a jury.

Sections B and C of Part II address the most important legal point in the case: the Justice Department’s argument that even if Wilson’s use of deadly force was unreasonable, the case against him “lacks prosecutive merit”27 because he did not act “willfully” within the meaning of Section 242 of Title 18, as interpreted by the Supreme Court in Screws v. United States.28 The Article explains how the puzzling opinion written by Justice William O. Douglas for a plurality of the Court in 1945 has been widely misinterpreted, and why it does not pose as high a hurdle to civil rights prosecutions as most lower federal courts and practitioners, including lawyers in the Civil Rights Division of the Justice Department, have long supposed.

The focus of Part III is the unanimous opinion of the Supreme Court in Lanier v. United States.29 Written by Justice David Souter more than fifty years after Screws was decided, the opinion provides an authoritative interpretation of the Court’s opinion in Screws and finally clarifies the ambiguities and contradictions that have made Screws such an enigma to so many practitioners and judges. Although Lanier does not specifically address the meaning of the willfulness requirement, Justice Souter’s explanation of the due process principles of notice and fair warning articulated by Screws virtually dictates the conclusion that the Justice Department’s argument that willfulness requires consciousness of wrongdoing—in the sense that a police officer not only acted unreasonably, but knew that he was acting unreasonably—is incorrect.

Part III explains that, considering Lanier, what is required for criminal liability is not, as the Justice Department maintains, proof that the officer knew his conduct was unreasonable. All that is needed is a showing that the unconstitutionality of his conduct had been “clearly established” by prior judicial decisions at the time the act was committed.30 Lanier’s surprising conclusion is that the willfulness element of Section 242 imposes no more stringent a condition on criminal liability for constitutional violations by police officers than the Court has imposed in federal lawsuits under 42 U.S.C. § 1983 seeking to hold state officials civilly liable for the same violations.31 Police officers are not entitled to immunity, either from criminal or civil liability, if a reasonable officer would have understood that the allegedly unconstitutional conduct violated clearly established law. Part III concludes by applying this clearly-established-law standard to Wilson’s use of deadly force, demonstrating how a properly instructed jury could have reasonably returned a verdict of guilty.

The Conclusion suggests how a deeper understanding of the relevant law can enable civil rights groups, practitioners, and informed citizens to take the necessary first steps toward solving a problem that has remained as intractable and divisive as police accountability. The Article also proposes federal legislation that would eliminate the “willfulness” requirement from section 242 and replace it with Lanier’s clearly-established-law standard of liability.

32

The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime . . . is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

378 U.S. at 350–51, quoted in part in Lanier, 520 U.S. at 265.

Under the circumstances of this case, the law is clear that Dr. Fielding’s Fourth Amendment rights were breached when the defendants broke into and searched his office without the requisite judicial authorization . . . As we observed above in connection with our discussion of Screws and its progeny, ‘specific intent’ under section 241 does not require an actual awareness on the part of the conspirators that they are violating constitutional rights. It is enough that they engage in activity which interferes with rights which as a matter of law are clearly and specifically protected by the Constitution.

Id. at 928. Ehrlichman is cited with approval by the Ninth Circuit in a 1993 opinion that concludes, after reviewing other federal appellate cases interpreting the meaning of specific intent under Screws: “[T]he weight of authority among the courts of appeals supports the view that ‘[t]here is no requirement under 241 [or 242] that a defendant recognize the unlawfulness of his acts.’” Reese, 2 F.3d at 886 (brackets in the original). A reading of the cases cited by Reese indicates that the assertion about “the weight of authority” is overstated and that the cases are far more ambiguous than the court’s statement suggests; further, none actually refer to Ehrlichman. See, e.g., United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986) (approving an instruction that “reckless disregard for a person’s constitutional rights is evidence of specific intent to deprive that person of those rights[,]” which implicitly dispensed with the need to prove knowledge of unlawfulness); Apodaca v. United States, 188 F.2d 932, 937 (10th Cir. 1951) (approving contradictory instructions stating that specific intent “does not require knowledge that such act is a violation of the law” but also stating that specific intent requires “conscious purpose to do wrong”); United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (approving an instruction, contrary to Screws, that the jury need only find that defendant intended to commit the underlying act, and that the act violated constitutional rights of the victim; this erroneous instruction relieved the jury of the duty to find knowledge of unlawfulness).

[T]here is a basic incompatibility between asserting that the law is what [courts] declare it to be, after a prescribed analysis, and asserting, also, that those [courts] must declare it to be . . . what defendants or their lawyers believed it to be. A legal order implies the rejection of such contradiction.

“Courts” has been inserted in brackets as a replacement for “officials,” which appears in the original text, in order to accurately convey the meaning of Professor Hall’s statement in the context of a judicial proceeding against a public official.

The Justice Department’s Memorandum contains a comprehensive examination of the testimony of forty witnesses, including Officer Wilson, who testified before the St. Louis County grand jury. It also includes summaries of autopsy reports, DNA analysis, ballistic and other forensic evidence, and witness interviews. The following statement of facts is based on the Justice Department’s narrative of the evidence, which credits virtually all of Wilson’s testimony, as well as most of the other witness accounts and forensic evidence supporting his story.

The encounter, which lasted less than two minutes, began when Wilson, driving westbound on Canfield Drive in his department-issued SUV, observed Brown and a friend, Darien Johnson, walking eastbound in the middle of the street. Brown and Johnson had just come from a nearby convenience store where Brown had strong-armed a clerk in shoplifting several packs of cigarillos, resulting in a dispatch call reporting a “stealing in progress”. Wilson was aware of this recent shoplifting incident when he observed the two.33

When the two men failed to obey Wilson’s command to walk on the sidewalk,34 Wilson, suspecting they fit the descriptions in the dispatch, called for backup and reversed his SUV at a forty-five-degree angle, blocking them from walking any further. Wilson then attempted to open the driver’s door of his SUV, but his vehicle had swerved so close to Brown that the door came into contact with Brown’s body and either rebounded closed, or Brown pushed it closed.35

A struggle ensued, during which Brown reached into the SUV through the open driver’s window and punched Wilson twice in the jaw.36 Wilson testified that because he was trapped in his vehicle and could not reach either his retractable baton or his mace,37 he responded by withdrawing his .40 caliber semi-automatic pistol from its holster.38 Brown then grabbed the pistol and momentarily gained control of it, preventing the gun from firing when Wilson twice pulled the trigger.39 Wilson pulled the trigger a third time, striking Brown’s right hand at the base of his thumb.40 Brown briefly backed up and then leaned into the driver’s window and assaulted Wilson again. Wilson fired another shot, which did not hit Brown and apparently struck the ground.41 Brown then fled, running eastbound on Canfield Drive, with Wilson in pursuit, pistol in hand, pointed down. Brown ran for a distance of approximately 180 feet from the SUV, and then suddenly stopped and turned around.42

Although credible witnesses testified that when he turned to face Wilson, “Brown held his hands up at shoulder level with his palms facing outward,” these same witnesses said this was only “for a brief moment,” and described Brown as “then dropping his hands and ‘charging’ at Wilson” before any shots were fired.43 After reviewing all the testimony and forensic evidence, the Memorandum concludes with respect to this issue: “Witness accounts that suggest Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence . . . [or] are otherwise not credible.”44At the time Brown stopped fleeing and turned to face Wilson, he was twenty to thirty feet away, according to Wilson’s testimony.45 While credible witnesses gave varying accounts of what happened next, describing Brown as “charging,” “running,” or “walking” toward Wilson, the Memorandum settles on a narrative that describes Brown as “moving” in Wilson’s direction when the first shots were fired.46 Wilson testified that he did not begin firing until Brown started “running” at Wilson, closing the distance between them to about fifteen feet after failing to comply with Wilson’s repeated order to stop and get on the ground.47 He then fired ten shots,48 in three separate volleys, as Brown advanced, with the last volley being fired when Brown was about eight to ten feet from Wilson.49 The shots hit Brown, according to the autopsy report, as few as five or as many as seven times (two of the entry wounds may have been re-entry wounds).50 The final and fatal shot to the apex of Brown’s head was fired when Brown was two to three feet away.51

A. Reasonableness of Officer Wilson’s Use of Deadly Force

To obtain a conviction under the federal criminal statute imposing constitutional limits on the conduct of police officers and other state or local officials, 18 U.S.C. § 242, the government must prove beyond a reasonable doubt that the defendant deprived the victim of a right protected by the Constitution. The relevant constitutional right in the case against Officer Wilson is the Fourth Amendment right to be protected from unreasonable searches and seizures which includes the right to be free from the excessive use of force. Finding a Fourth Amendment violation, on the basis of the preceding statements of facts, turns on whether Wilson had reasonable grounds to use deadly force at the time he started shooting.

Had the killing of Michael Brown occurred prior to 1985, classifying the shooting as a reasonable use of lethal force would have been beyond dispute, even if Wilson had shot Brown in the back as he ran down Canfield Drive. Until the Supreme Court’s 1985 decision in Tennessee v. Garner,52 the use of deadly force to prevent the escape of a fleeing felon was constitutionally permissible, without regard to the nature of the felony. Since Brown was classifiable as a felon both by reason of his assault on Wilson in the SUV,53 and his use of force in pushing the convenience store clerk who tried to stop him from leaving with the stolen cigarillos,54 Brown was a “fleeing felon” when he ran down the street after the encounter at the SUV. In pre-Garner America, this would have provided sufficient grounds to justify killing him to prevent his escape.

In its decision in Garner, the Court announced that using deadly force to apprehend or prevent the escape of a suspected felon would no longer be tolerated under the Fourth Amendment’s prohibition of unreasonable searches and seizures, unless there is probable cause to believe the suspect either (1) “has committed a crime involving the infliction or threatened infliction of serious physical harm,”55 or (2) “poses a significant threat of death or serious physical injury to the officer or others.”56 Unless Wilson had reasonable grounds to believe that Brown would either kill him or cause him serious physical injury when Brown stopped fleeing and, suddenly turning around, headed back toward Wilson, Brown’s failure to raise his hands or otherwise clearly indicate his surrender was not sufficient to justify killing him.57

The Justice Department argued that Wilson had reasonable grounds to fear for his life because, as Brown moved toward Wilson, he “reached toward his waistband, causing Wilson to fear that Brown was reaching for a weapon.”58 This statement is not supported by Wilson’s own grand jury testimony. Wilson testified that he observed Brown’s right hand reaching “under his shirt in his waistband [as] he starts running at me,”59 but he never stated that he believed Brown was reaching for a weapon.60 The detective who interviewed Wilson the day after the shooting, when called to testify, was specifically asked by one of the prosecutors, “Did he [Wilson] ever tell you that he thought Michael Brown was going for a weapon?”61 The detective replied that Wilson made three references to Brown’s hand being in his waistband, and that, “as a police officer knowing that if an individual has his hand in his waistband, that is of concern to me personally. And so it was implied, in my opinion . . . that Darren Wilson was making reference to believing that there could have been a weapon in Michael Brown’s waistband. [H]owever, as you said, he never specifically mentioned the word weapon.”62

The Memorandum proceeds to argue that even if Brown had never reached into his waistband, the mere fact that he continued to move toward Wilson, instead of complying with his command to get on the ground, was alone sufficient to give Wilson reasonable grounds to use deadly force.63 In support of this statement, the Justice Department cites the decision of the Eighth Circuit Court of Appeals in Loch v. City of Litchfield,64 which the Memorandum says “is dispositive on this point.”65 This assertion is not supported by the court’s opinion in Loch.

While the Court of Appeals in Loch found that the officer in that case acted reasonably by shooting the suspect as he “continued toward [the officer] despite the officer’s repeated orders to get on the ground,”66 the Justice Department failed to recognize that the court regarded that use of deadly force as reasonable only because the suspect’s brother-in-law had told the officer that the suspect “was armed with a firearm.”67 Although the suspect had thrown the gun in the snow before he started to move toward the officer, the court noted that the officer “did not observe that action”. The court concluded, therefore, that “having just been told that [the suspect] had a gun, [the officer] acted reasonably in drawing his firearm and ordering [the suspect] to the ground to prevent harm to [the brother-in-law] or others at the scene.”68 In these circumstances, the court concluded, the suspect’s continued movement toward the officer despite the officer’s repeated orders to get on the ground justified killing him. Had Wilson believed, as the officer in Loch believed, that the suspect attacking him was armed, Wilson’s use of deadly force would have been justified under Loch. Absent that belief, Loch is not the “dispositive” bar to conviction that the Justice Department says it is.

It appears that Wilson believed his life was in danger not because he thought Brown was reaching for a gun, but because of what had happened earlier in the encounter at the police vehicle. Wilson believed he had to use deadly force because Brown had previously attempted to overpower him in his SUV69 and gain control of his weapon, and he feared that if Brown reached him, Brown would succeed this time and kill Wilson with his own weapon.70 Whatever justification there may have been for Wilson’s use of deadly force while still seated in his SUV, Brown no longer posed a threat to Wilson after the struggle had ended and Brown had run 180 feet down the street.71

The question remains whether Brown posed a reasonable threat of death or serious bodily injury when he turned around and started to move in Wilson’s direction. Unlike the situation Wilson faced in his SUV, where he was unable to reach his mace or baton, both of these less-lethal alternatives were available to him in the subsequent confrontation with Brown in the roadway, although he used neither. A full shot of mace, the brand name for pepper spray, is powerful enough to stop a charging grizzly bear,72 and has been shown, in a study of use of the spray by the Baltimore Police Department, to be effective in subduing dangerous or violently resisting suspects in eighty-four percent of the cases surveyed.73 Even if a police officer has reasonable grounds to fear death or serious bodily injury, his use of deadly force is unlawful if it is not necessary to kill the suspect in order to subdue him or prevent his escape.74 This judgment is to be made from the perspective of a reasonable police officer, and includes consideration of “the availability of alternative methods of capturing or subduing a suspect.”75 The quoted language is from Retz v. Seaton, a 2014 decision of the U.S. Court of Appeals for the Eighth Circuit,76 which governs federal cases in Missouri. The Justice Department’s Memorandum, without mentioning the decision, says just the opposite, arguing categorically that the law bars any consideration of alternative methods: “Even if, with hindsight, Wilson could have done something other than shoot Brown, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat.”77

Although the Justice Department cites previously decided Eight Circuit cases in support of its argument,78 the Court of Appeals, in its 2014 decision, explains that any interpretation of earlier cases that would prohibit a jury from assessing whether a police officer should have used a less-lethal method to subdue a suspect is “incorrect.”79 Those cases, the court explains, “protect police officers from Monday-morning quarterbacking,” but “do not preclude consideration of the range of available choices when such evidence is relevant and necessary to determining . . . whether the particular method selected was objectively reasonable.”80 Because the availability of a less-lethal alternative was a factor that jurors would have been instructed to take into account in assessing the reasonableness of Wilson’s use of deadly force, there was sufficient evidence for a jury to find that Brown was killed unnecessarily and in violation of his Fourth Amendment rights. So, even if we accept Wilson’s testimony as true, the Justice Department’s conclusion that there was insufficient evidence to convince twelve jurors beyond a reasonable doubt that Wilson used unreasonable force81 was supported by neither the law nor the evidence.82

B. The Willfulness Requirement of 18 U.S.C. § 242

Proving that Wilson violated Brown’s Fourth Amendment rights is only the first step in deciding whether there was sufficient evidence to file federal civil rights charges against Wilson. A federal prosecutor faces the additional hurdle of having to prove that Wilson “willfully” deprived Brown of his Fourth Amendment rights, as required by Section 242 of Title 18.83 The great source of controversy in civil rights prosecutions lies in discerning what “willfully” means and how high a bar it sets.

None of the Reconstruction Era civil rights statutes,84 from which Section 242 derives, contained the word “willfully.” It was added in 190985 with no explanation, except for a statement on the floor of the Senate by Virginia’s John Daniel, a veteran of the Civil War known for his oratory in praise of the Confederacy and white supremacy.86 Although he had no responsibility for the insertion,87 Senator Daniel said that the word was added to make the statute “less severe.”88The Justice Department’s Memorandum states that acting “willfully” requires a prosecutor to prove not only that Wilson intended to kill Brown, but that he killed him “knowing that it was a wrongful act.”89 (The press release that accompanied the Memorandum describes the requirement as “knowing it was wrong and against the law.”90) The Justice Department’s interpretation of the willfulness requirement has startling implications. It means that if Wilson believed in good faith that he was lawfully acting in self-defense, he cannot be found guilty of “willfully” violating Brown’s civil rights, even if the evidence were sufficient for a jury to find that Wilson’s belief was unreasonable and he was therefore guilty of murder.91 This interpretation would be laughable if it did not have such grave consequences. The assertion that, even if Wilson’s use of deadly force constituted murder, civil rights charges could not be filed against him as long as he honestly believed such force was necessary to defend himself, reads like a headline from the satirical news site The Onion: “Police May Not Murder Citizens Unless They Feel It’s Necessary.”

To make this argument, the Justice Department relies on Screws v. United States,92 which is the leading Supreme Court decision on the meaning of the willfulness requirement in civil rights prosecutions.93 The Memorandum’s statement that willfulness requires proof that Wilson killed Brown “knowing that it was a wrongful act” or “wrong and against the law,”94 however, is not language that appears in Screws. It is merely an interpretation of Justice William O. Douglas’s plurality opinion in Screws, in which he construes the willfulness requirement “as connoting a purpose to deprive a person of a specific constitutional right”95 or “a specific intent to deprive a person of a federal right made definite by decision or other rule of law.”96 The exact meaning of this language has never been made clear by the Court, as many commentators have long complained.97 As one federal appeals judge has observed, “judges and lawyers in Section 242 cases have struggled to formulate comprehensible jury instructions explaining it.”98 Indeed, Screws may be one of the most obscure and baffling cases ever decided by the Supreme Court, and because its complexity permits diverse interpretations, the opinion warrants analysis in considerable depth.

C. Screws v. United States: The Anatomy of a Legal Horror

“[A] shocking and revolting episode in law enforcement” is how Justice Douglas’s plurality opinion described the case.99 Claude Screws was sheriff of Baker County, Georgia.

On the night of January 29, 1943, he dispatched two officers to the home of the victim, Robert Hall, to arrest him on a warrant charging him with stealing a tire.100 Hall was a thirty-year-old African American with whom Screws had a history of conflict.101 The dispute had started earlier in the year when Screws, describing Hall as a “biggety [arrogant] negro,”102 directed one of his deputies to seize Hall’s pearl-handled semi-automatic pistol.103 Screws later explained his unlawful act by saying, “[I]f any of these damn negroes think they can carry pistols, I am going to take them.”104 Hall had the temerity to take legal action to recover his firearm, which required the Sheriff to appear before a grand jury and explain his conduct,105 after which Hall retained a local attorney who sent Screws a letter requesting return of the pistol.106 This was the last straw for Screws, who ordered Hall to be arrested on an apparently forged warrant charging the tire theft.107 Screws stated that “he was going to go and get the black [SOB] and going to kill him, and that he had lived too long then.”108 Hall was arrested and handcuffed in his home by the two officers after midnight and driven by car to the local courthouse where Screws was waiting.109 As Hall stepped out of the vehicle, the three men proceeded to beat him with their fists and “a solid-bar blackjack about eight inches long and weighing two pounds.”110 The defendants claimed self-defense, stating that Hall had reached for a gun. In fact, he was unarmed, and after he had been knocked to the ground, still handcuffed, the defendants continued to beat him for “fifteen to thirty minutes until he was unconscious,”111 leaving “a pool of blood three feet by four feet” after crushing the back of his skull.112 Hall was then dragged feet first through the courthouse yard into the jail where he was thrown onto the floor.113 Screws eventually summoned an ambulance, but Hall died shortly after arriving at the hospital, without regaining consciousness.114When the local district attorney failed to bring charges against Screws and the other two officers, the Justice Department presented the case to a federal grand jury in Georgia, which returned a three-count indictment, including a count under a statute now codified as 18 U.S.C. § 242, charging the three men with acting under color of the law of Georgia to “willfully” deprive Hall of his federal constitutional right under the Fourteenth Amendment “not to be deprived of his life without due process of law.”115 The jury found the defendants guilty after a three-day trial, and the judge imposed a fine of $1,000 and a prison term of three years.116 The convictions were affirmed by a divided panel of the Fifth Circuit, but were subsequently reversed by the Supreme Court and remanded for a new trial.117 The court’s instruction to the jury on retrial, which carefully tracked the language from Justice Douglas’s plurality opinion, resulted in the acquittal of all three defendants.118

How a conviction for what was clearly a premeditated, racially motivated, and horrifically brutal murder could have been transformed into an acquittal remains one of the great mysteries of criminal and constitutional jurisprudence. Reversal was required, Douglas wrote, because of the failure of the trial court to instruct the jury that the use of the word “willfully” in the statute required jurors to find that the defendants had “the purpose to deprive the [victim] of a constitutional right.”119 Elsewhere in the opinion, Douglas referred to “a purpose to deprive a person of a specific constitutional right.”120 The very concept of a purpose-to-deprive-a-person-of-a-constitutional-right is highly problematic. No police officer leaves home and says, “I think I’ll violate someone’s constitutional rights today.” Recognizing this, Douglas makes it clear that it is not necessary for the officer to have been “thinking in constitutional terms.”121 But if the officer is not thinking in constitutional terms, how can he have a purpose to deprive a person of a specific constitutional right? Douglas suggests that the dilemma can be resolved by requiring proof of a “bad purpose” or “evil motive,”122 but later asserts that “the presence of a bad purpose or evil intent alone may not be sufficient.”123 As if this were not confusing enough, Douglas adds recklessness to the mix, observing that when civil rights violators “act willfully in the sense in which we use the word, they act in . . . reckless disregard of a constitutional requirement which has been made specific and definite.”124 Civil rights scholar Frederick Lawrence has pointed out, however, that “Justice Douglas’s use of the term reckless correlates more closely to the concept of negligence.”125The only part of the Screws opinion that is crystal clear is the statement that “something more is required than the doing of the act proscribed by the statute.”126 Thus it is not sufficient to prove that Wilson intended to kill Brown and that the killing resulted in the violation of a right protected by the Fourth Amendment. Douglas uses the term “specific intent”127 to refer to the “something more” that is required, but his use of the term is ambiguous, only adding to the confusion.128 Ascertaining the content of that “something more” has become a legal puzzle that has bedeviled generations of lawyers and judges.

The various discussions in Screws about purpose, evil motive, reckless disregard, and specific intent seem to make Screws a case about the state of mind of a civil rights violator. Indeed, Douglas’s discussion of the meaning of “willfully” at the outset of Part II of his opinion seems to construe the term as a heightened standard of mens rea requiring not only an intent to kill or injure the victim, but also the additional burden of proving that the defendant acted with knowledge of the unlawfulness of his conduct.129 This part of the opinion thus appears to confirm the Justice Department’s interpretation of Screws. However, the remainder of the opinion manifests a concern not with mens rea, but with the constitutional difficulties presented by a vague statute that does not give adequate notice of the conduct subject to punishment.130 Indeed, it is the entire task of the plurality opinion to devise an interpretation of the willfulness requirement that “will save it from the infirmity of vagueness.”131 As Douglas explains, concerns about vagueness are particularly relevant to a statute making it a federal crime to violate constitutional rights that are constantly “changing and uncertain.”132 Given “the character and closeness of decisions of this Court,” Douglas asks, how can a police officer be expected to know that he is violating a person’s constitutional rights?133 What “saves the [statute] from any charge of unconstitutionality on the grounds of vagueness,”134 Douglas says, is the requirement that the right the defendant is alleged to have violated is “a right which had been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.”135 In other words, if judicial decisions interpreting the relevant constitutional right have made the contours of the right sufficiently “specific and definite”136 at the time of the alleged offense to show that the right was clearly violated, defendants “are in no position to say they had no adequate advance notice that they would be visited with punishment.”137 Yet, even as Douglas appears to finally elucidate the meaning of willfulness, he leaves the reader in doubt as to whether the due process requirement of adequate notice requires – in addition to conduct in violation of a clearly defined constitutional right . . . actual knowledge by the defendant that he violated that right.138 It would take over fifty years for the Court to finally resolve this and other vexing questions, and to set the stage for a whole new approach to civil rights prosecutions.

A. Lanier v. United States

In 1997, the Supreme Court returned to Screws and, in a breathtakingly clear unanimous opinion written by Justice David Souter in United States v. Lanier,139 resolved many of the questions left open by Justice Douglas’s enigmatic analysis. Daniel Lanier was a Chancery Court judge for two rural counties in Tennessee. He was convicted of violating the constitutional rights of five women he had sexually assaulted in his chambers, including a potential litigant in his court, who was forced to perform oral sex on him on two separate occasions. Defense counsel argued that whether or not Lanier acted “willfully,” he could not be convicted of violating their constitutional rights because freedom from sexual assault was not a right protected by the Constitution, at least not at the time the alleged offenses were committed. Were the Court to interpret the Constitution to create such a right and retroactively apply it to him, Lanier argued, Section 242 would be rendered unconstitutionally vague. The Court agreed that Section 242 would present a vagueness problem were it not for the saving interpretation that Screws had given to the statute, and so the Justices were obliged, after more than half a century, to clarify the meaning of Screws.140

Lanier finally makes clear that (1) Screws is about the constitutional difficulty of vagueness and fair notice, not about the mental state required for a civil rights prosecution, and (2) the fair notice necessary to avoid vagueness does not require actual knowledge of the relevant law. Referring to the problem of “fair warning about the scope of criminal liability,” Souter explained: “The Screws plurality . . . recognized that this constitutional difficulty does not arise when the accused is charged with violating a ‘right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.’”141 A right had been “made specific,” Souter continued, when it had been “clearly established”142 at the time the alleged offense occurred. This interpretation, Souter wrote, was dictated by the “fair warning requirement”143 of the Due Process Clause, which prohibits any person from being held “criminally responsible for conduct which he could not reasonably understand to be proscribed.”144 Fair warning does not require the defendant to have had actual knowledge of the unlawfulness of his conduct at the time the alleged offense was committed,145 as the Justice Department Memorandum contends, and as some language in the Screws opinion suggested.146 All that is required, Souter says, are judicial decisions interpreting the right in question so that “the contours of the right violated are sufficiently clear that a reasonable official would understand that what he is doing violates that right.”147 Souter added: “We applied this standard in Screws v. United States.”148 In recognizing that Screws required the constitutional right to have been “clearly established” by prior judicial decisions, Souter equated the “made-specific standard of fair warning” articulated in Screws149 to the “clearly established” standard applicable to qualified immunity in cases of civil liability under 42 U.S.C. § 1983.150

Although Lanier did not directly address the issue of willfulness,151 the interpretation of the willfulness requirement by the Screws opinion is inseparable from its analysis of the vagueness issue. If, as Screws indicates, its interpretation of willfulness derives from concerns about vagueness and fair notice, and the problem of vagueness is to be solved by reference to “clearly established” law, as the Supreme Court declared in Lanier, then it would seem to follow logically that the willfulness requirement must also be defined by the “clearly established” standard.152 This is the argument the Justice Department could have, and should have, made in support of the conclusion that a jury could reasonably have found that Wilson willfully violated Brown’s Fourth Amendment rights. A jury finding of willfulness would have been warranted because the law permitting a jury to consider the availability of less lethal alternatives when determining the reasonableness of the use of deadly force had been “clearly established” at the time the fatal shooting occurred.153

It is of course arguable, given the failure of Lanier to specifically address the issue of willfulness, that the complexity of the Screws opinion allows for the interpretation that willfulness still requires something more than a clearly established right. However, it is difficult to understand why federal prosecutors, in adopting a definition of willfulness that requires a defendant to recognize the unlawfulness of his conduct, would choose an interpretation that not only poses the highest hurdle to prosecution, but also is directly contradicted by a federal appeals court decision that provides the most thorough analysis of the willfulness requirement since Screws was decided more than seventy years ago. In United States v. Ehrlichman, which affirmed a conviction for one of the most notorious civil rights violations in United States history, the U.S. Court of Appeals for the District of Columbia Circuit declared that “[t]here is no requirement under section [242] that a defendant recognize the unlawfulness of his acts.”154 Ehrlichman is critical to understanding the evolution of the meaning of willfulness because it is the only federal appellate decision that applies the fair-notice analysis adopted by Lanier to the task of interpreting the meaning of willfulness, which was left open in Lanier. Most significantly, the Ehrlichman opinion was written more than twenty years before Lanier was even decided, making clear as early as 1976 that Screws did not pose as high a bar to civil rights prosecutions as federal judges and civil rights lawyers, including prosecutors in the Civil Rights Division of the Justice Department, have long supposed.155

In this Watergate era case, John Ehrlichman, Assistant to the President for Domestic Affairs in the Nixon White House, had been convicted for conspiring to violate the constitutional rights of Daniel Ellsberg’s psychiatrist by authorizing a burglary of the psychiatrist’s office after Ellsberg had leaked the Pentagon Papers, a Top Secret study of the Vietnam War. Ehrlichman contended that he did not act “willfully” because he sincerely believed the break-in was lawful. That belief was based on Ehrlichman’s good faith but mistaken assumption that warrantless searches by members of the Executive Branch were permissible in matters of national security.156

In analyzing the Screws opinion, the Court of Appeals for the District of Columbia treated the willfulness requirement as a “cure [for] the problem of vagueness presented by the statute.”157 Focusing on the term “specific intent” in Justice Douglas’s definition of willfulness, the D.C. Circuit construed the requisite intent to mean acting “with a purpose to deprive a person of a specific constitutional right made definite by decision or other rule of law.”158 The Court of Appeals declared that the requisite specificity is satisfied if, at the time the offense was committed, the protected right was “clear and firmly established,”159 anticipating by more than twenty years the Lanier standard of fair notice. Since judicial decisions clearly established that, in the absence of an explicit authorization by the President or Attorney General, warrantless searches, even in national security matters, violated the Fourth Amendment, and Ehrlichman had no such authorization, the court concluded he had acted “willfully” in authorizing the burglary.160 For reasons that are not entirely clear, the Justice Department’s Memorandum does not mention Ehrlichman, and refers to Lanier only as a source of the quotation from Screws about willfulness requiring the defendant to have acted with the purpose “to deprive a person of a right made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them,”161 without explaining that Lanier interpreted this language to mean what a “clearly established” right means in the context of qualified immunity from civil liability. Whatever else the authors of the Memorandum might say about these cases, the one thing that cannot fairly be said, as long as these judicial precedents stand, is that indicting Wilson “is not permitted by . . . the governing law.”162

B. Applying the New Willfulness Requirement to Ferguson

If we view the willfulness element of Section 242 as requiring only a right that was clearly established at the time the alleged violation occurred, the standard can be readily met in the case against Officer Wilson. His use of deadly force was governed by a thirty-year-old Supreme Court precedent that clearly established a Fourth Amendment right of a fleeing felon to be free from a police officer’s use of deadly force unless necessary for the officer to protect himself or others from death or serious bodily injury.163 If the relevant constitutional standard is stated with greater specificity,164 it can be articulated as requiring not simply that deadly force was necessary to protect Wilson from death or serious bodily injury, but more specifically, that the reasonableness of his use of lethal force was to be determined in light of the availability and effectiveness of less-lethal alternatives. There was controlling circuit precedent for this proposition in the form of an Eighth Circuit decision that required consideration of such alternatives,165 and the precedent was sufficient to satisfy the clearly-established-law standard.166

In a civil rights prosecution governed by a clearly-established-law standard of liability, existing instructions on willfulness would be replaced by a two-step process. The first step would inquire whether a general principle of constitutional law—e.g., the standard permitting a jury to consider the availability of less-lethal alternatives in assessing the reasonableness of a police officer’s use of deadly force—was clearly established at the time the alleged offense was committed. A constitutional principle is “clearly established,” even without a Supreme Court decision on point, if there is either controlling Circuit precedent167 or, in the absence of such precedent, “a consensus of cases of persuasive authority” such that a reasonable officer would have been aware of the principle.168 This would be a question of law for the trial judge to decide.

The second step in the process would address the application of a clearly established general principle to the particular facts of a case and inquire whether a reasonable police officer would have understood that his or her conduct violated the general principle. This would be a mixed question of law and fact to be determined by the jury.169 Jurors deliberating Wilson’s guilt or innocence would receive an instruction directing them to consider whether his use of force was unreasonable in light of the availability and effectiveness of less-lethal options:

In determining whether the defendant’s use of deadly force was unreasonable, consider all the circumstances known to him at the time, including the availability and effectiveness of alternative methods to subdue the suspect or take him into custody.170

Wilson’s grand jury testimony indicates that he knew he had a legal duty to consider less-lethal alternatives before escalating to deadly force. He testified that during his struggle with Brown while seated in his SUV, he considered using his mace, retractable baton, and flashlight (he did not carry a taser), but that he was either unable to reach a particular weapon, or the chances of it being effective in such a confined space were “slim to none.”171 Referring to this procedure for considering less-lethal alternatives as a “use of force triangle” or “continuum,”172 Wilson said that he reviewed the triangle “in [his] head” while in his vehicle.173 Wilson did not say whether he recognized his duty to consider less-lethal options during his subsequent encounter with Brown in the roadway, but there is clearly a basis for such an inference. However, even if Wilson believed he had no duty to use his mace because of the risk that it might have failed to prevent Brown from overpowering him and killing him with his own weapon, the question remains whether that belief was unreasonable.174 This presents a mixed question of law and fact that should have been left to a jury to decide.

C. The Persistence of the Jurisprudence of Police Impunity

Civil rights prosecutors face an uphill battle in trying to prove willfulness, as most lower federal courts have treated the term as a subjective mens rea standard, interpreting Screws to require an intent to deprive the victim of a federal constitutional right175 and approving jury instructions that condition a guilty verdict on a finding that the defendant acted with “intent to deprive another of a right guaranteed by the Constitution or other federal law”176 or, more generally, with a “bad purpose or evil motive to disobey or disregard the law.”177 While some federal appeals courts have construed the language of “specific intent” to require actual knowledge by the defendant that he violated a federal right,178 at least one court has said that a knowing violation of state law is sufficient.179 Other courts add to the confusion by stating that the government need not prove any knowledge of unlawful conduct,180 allowing a jury to find willfulness on the theory that a clear violation of a constitutional right shows a “reckless disregard” for that right, which Screws treats as satisfying the requirement of willfulness.181 Adding to the confusion of the case law is the perplexing nature of jury instructions that often put jurors through the kind of mental gymnastics that stymy even legal scholars. A standard instruction for the Fifth Circuit informs jurors that to find the defendant was acting willfully, “it is not necessary for you to find the defendant knew the specific Constitutional provision or federal law that his conduct violated”; the instruction then appears to contradict itself in the next sentence, which states: “But the defendant must have a specific intent to deprive the person of a right protected by the Constitution or federal law.”182 While juries return guilty verdicts despite the restrictive and confusing instructions,183 and the convictions are almost always affirmed on appeal,184 they are affirmed by opinions that rarely engage in more than a recitation of the specific-intent language from Screws.185 It has been almost twenty years since the Supreme Court made clear in Lanier that “specific intent” refers not to the state of a defendant’s mind and whether it was specifically focused on violating a constitutional right, but rather to the objective clarity of a right made specific—in the sense of having been “clearly established”—by prior judicial decisions. Yet Lanier remains unrecognized by lower federal courts186 as part of the mainstream legal narrative explaining the standard of proof in civil rights prosecutions.187

Even without recognizing the significance of Lanier, the Justice Department, prior to Ferguson, vigorously opposed a request by defense counsel for jury instructions construing willfulness to require proof that the defendant “acted with knowledge that his conduct violated the law.”188 Despite its success in resisting such defense-friendly instructions, the Justice Department decided in Ferguson to make defense lawyers’ arguments for them, accepting defeat in the legal battle over one of the most important civil rights issues of our time without lifting a musket of resistance, as if Supreme Court precedent so clearly dictated the Department’s interpretation of willfulness that no other interpretation was possible.

Assuming that Justice Department lawyers somehow felt constrained by judicial precedent to interpret willfulness to require some kind of mens rea with respect to the relevant law, the requisite blameworthiness could have been satisfied by applying the “reckless disregard” standard approved in Screws. When a police officer acts in violation of a constitutional right that is obvious in the sense that it is clearly established by judicial precedent, he acts with the kind of culpable mental state described in Screws as a “reckless disregard of a constitutional requirement which has been made specific and definite.”189 When defendants act with such recklessness, the Court said, “they act willfully in the sense in which we use the word.”190 This would give recklessness the same meaning as negligence. A person who acts in the face of an obvious risk or, as the Lanier opinion put it, in the face of a risk of unlawfulness that is “apparent,”191 is reckless in an objective sense because the implication is that the unlawfulness of the conduct is “so obvious that it should be known” to a reasonable person.192

Use of an objective reckless-disregard instruction was originally advocated, unsuccessfully, by Robert Carr, Executive Secretary of President Truman’s Committee on Civil Rights and one of the first legal scholars to advise the Justice Department on Screws.193 The 1961 Report of the U.S. Civil Rights Commission criticized the failure of the Justice Department’s Civil Rights Division to develop a consistent policy on proposing an instruction based on the reckless-disregard standard, which the Commission referred to as “constructive intent.” The Report attributed the failure to “differences of opinion among Division attorneys as to the meaning of the Screws doctrine on specific intent.”194 Notwithstanding the reluctance of the Justice Department to use it, the reckless-disregard standard has continued to be approved by the Supreme Court195 and federal appeals courts196 as satisfying the willfulness requirement.

No legislature has ever enacted a statute, and no court has ever devised an interpretation of a statute, that has permitted a defendant charged with a violent crime to avoid criminal liability on the grounds that he committed the act without knowing it was criminal or wrongful.197 To be sure, criminality requires a culpable state of mind known as mens rea or “guilty mind.”198 This does not mean, however, that a defendant must have known that his conduct was illegal for him to be found guilty.199 It is generally sufficient to prove that the defendant intentionally or knowingly inflicted harm on the victim, even if the defendant did not know that doing so was unlawful. This principle is expressed in the venerable maxim, “Ignorance of the law is no excuse.”200 Although exceptions to this principle can be found in the Model Penal Code’s recognition of a mistake-of-law defense for reasonable reliance by the defendant on a statute or judicial decision or other authoritative interpretation of the law by an official charged with its enforcement,201 and in the Supreme Court’s recent recognition of a mistake-of-law defense for police officers in the Fourth Amendment itself,202 the mistake must be reasonable.203

Another exception, which excuses even an unreasonable mistake of law, has been recognized in a relatively small but growing number of cases where federal criminal statutes that use the term “willfully” have been construed to manifest a congressional intent to require proof that the defendant knew he was acting unlawfully. However, these cases have been confined to tax laws and to regulatory statutes prohibiting conduct not generally known to be criminal.204 The rationale for requiring knowledge of illegality in federal tax cases has been based on the complexity of the Internal Revenue Code,205 which has the potential for criminalizing the errors of “the well-meaning, but easily confused mass of taxpayers.”206 Other cases construing willfulness to require consciousness of wrongdoing have expressed a concern with criminalizing conduct that is “apparently innocent”207 or “not inevitably nefarious,”208 like the unauthorized possession of food stamps209 or the “structuring” of banking transactions by making cash deposits in amounts of less than 10,000 dollars to avoid bank reporting requirements.210

While the corpus of constitutional law governing police procedure has been ridiculed as a constitutional “code of criminal procedure” by critics of its complexity,211 the Fourth Amendment has not yet become an Internal Revenue Code of Criminal Procedure, and the fatal shooting of citizens by police officers can hardly be characterized as “apparently innocent” or “non-nefarious.” Whatever the reasons for shielding police officers from criminal liability—whether it is yielding a measure of discretion to officials acting in good faith to enforce a constantly evolving body of law,212 or recognizing that “police officers are often forced to make split-second judgments”213—these legitimate interests can be served by replacing the term “willfully” in 18 U.S.C. § 242 with language adopting the “clearly established law” requirement announced by the Court in Lanier, which uses a standard of reasonableness to determine when judicial decisions have defined a right with sufficient clarity.

The difficulty with formulating such language is that there are two meanings of “reasonable,” as the term has been used by the Court in defining the clearly-established-law standard. The first is the meaning given to it by the Court in Lanier and in Anderson v. Creighton,214 a pre-Lanier case defining qualified immunity in the context of civil liability under 42 U.S.C. § 1983, and on which the Lanier opinion relied. Anderson defines a right as clearly established if it is “sufficiently clear that a reasonable official would understand that what he is doing violates that right.”215 This is the fair-notice meaning of reasonableness.216 The second meaning emerged from Justice Scalia’s 2011 majority opinion in Ashcroft v. al-Kidd, a Section 1983 case in which Scalia quotes the Anderson language in a slightly altered form, asserting that qualified immunity protects public officials unless the law is “‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’”217 This was not simply a shift in tone. By replacing the word “a” in Anderson’s reference to “a reasonable official” with the word “every” to produce the phrase “every ‘reasonable official,’”218 Scalia generated a substantive change in the reasonableness standard, embraced and embroidered by subsequent opinions,219 that has had the effect of transforming Anderson’s fair-notice requirement into an unprecedented mens rea standard of “super-negligence” that comes close to requiring consciousness of wrongdoing.

Section 1983 litigation has thus resulted in the Court replacing a standard that originally granted qualified immunity to a public official unless “a reasonable official” would have understood that his conduct violated a constitutional right, with a new formulation that grants immunity unless “every reasonable official” would have understood that what he did violated a constitutional right. In other words, if there is a disagreement among reasonably well-trained officers about the unlawfulness of the defendant’s conduct, the defendant is immune from civil liability under the al-Kidd standard.220 But if there is a disagreement among reasonably well-trained officers, this means there is at least one reasonable officer who would have understood that the defendant’s conduct was rendered unconstitutional by judicial precedent as it existed at the time the offense was committed. This should be sufficient to provide the kind of fair notice contemplated by Lanier, which requires only that “a reasonable official would understand that what he is doing violates that right.”221

The metamorphosis of Section 1983 jurisprudence has produced a concept of reasonableness so rigorous that it requires agreement among all reasonable jurists and police officers about what is reasonable before a defendant can be found liable—an almost impossible burden for plaintiffs to meet.222 What must be proved in Section 1983 cases for plaintiffs to prevail is a state of mind of an officer so deluded in his belief that his conduct was lawful that no serious police officer would regard it as reasonable—a mens rea bordering on consciousness of wrongdoing.223 It is therefore important to understand that any effort to enact legislation to reduce the standard of proof in civil rights prosecutions by replacing the existing willfulness requirement of 18 U.S.C. § 242 with language that meets Lanier’s due process requirement of fair notice should avoid terminology that incorporates the Court’s later and more police-friendly definitions of “clearly established law” and “reasonableness” in Section 1983 cases.224

President Nixon famously said, “When the President does it, that means that it is not illegal.”225 The principle of federal criminal liability adopted by the Justice Department in its Memorandum says, in effect, “When a public official does it and believes it is not illegal, that means it is not illegal.” No society based on the rule of law can tolerate a legal principle that makes the President, or a White House aide, or a police officer the ultimate judge of the criminality of his own conduct. The germinal idea at the core of the rule of law is that we do not allow people to make up their own rules.226 The law is what the legislature and the courts say it is, not what the defendant thought it was when he committed the alleged offense. No court would take seriously the argument that a gang member who responded to a punch in the face with a gunshot to the head should be exonerated because he honestly believed he had a right to use deadly force against any physical attack by an aggressor. Adherence to the rule of law has long been thought to mean holding public officials to a higher—not a lower—standard than private citizens. “In a government of laws,” Justice Louis Brandeis wrote in a famous dissent, “existence of the Government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”227

Whether Wilson should have been prosecuted undoubtedly presented a hard case, as the foregoing analysis demonstrates. But the Justice Department’s Memorandum makes the case for not prosecuting seem so easy that it gives rise to a variation of Holmes’ dictum about hard cases making bad law: Making hard cases look easy makes bad law. The Memorandum makes the case for not charging Wilson seem beyond dispute by resolving conflicts in the evidence that should have been left to a jury;228 by asserting the critical fact that Brown’s reaching for his waistband “caus[ed] Wilson to fear that Brown was reaching for a weapon,” which is not supported by Wilson’s own testimony;229 by citing a decision of the Court of Appeals for the Eight Circuit as “dispositive” authority for a statement about the use of deadly force that the case does not support;230 by stating, contrary to controlling Eighth Circuit precedent, that the availability of less-lethal options is irrelevant in assessing the reasonableness of a police officer’s use of deadly force;231 and, with respect to the most important legal issue in the case, by failing to consider an important federal appellate opinion that contradicts the Justice Department’s conclusion about willfulness requiring knowledge of unlawfulness,232 exposing the fallacy in the kind of reasoning that led to the Department’s interpretation of Screws.

Perhaps the single greatest fallacy in the Memorandum is a misconception that is shared by almost all judges and practitioners of civil rights law on both the prosecution and defense sides of the courtroom: the perception of Screws as a greater obstacle to conviction than it actually is. From its very inception, Screws was seen not just as a thorn in the side of the newly created Civil Rights Section of the Justice Department, the predecessor of the present-day Civil Rights Division, but as a threat to its very existence. The fear was not only that jury instructions requiring a finding that the defendant acted with a specific intent to violate a protected right would make it difficult to obtain convictions,233 but, even worse, that if a conviction were obtained on the basis of a weak record, an appeal could reach the Supreme Court and a majority might overrule Screws or impose an even more restrictive interpretation, making Section 242, in the words of then-Attorney General Tom Clark, “a dead letter on the statute books.”234 Clark nevertheless described Screws as “definitely a victory for the government”235 because Douglas’s opinion had rescued the statute from invalidation. However objectionable the opinion might be, the worst thing that could happen to the cause of civil rights would be for a majority of the Court to agree with the three dissenters in Screws that judicial interpretation cannot cure the vagueness problem,236 and to strike down Section 242 as facially unconstitutional.

If ever there was a case with the potential for realizing that catastrophic expectation, it was Lanier v. United States, which reached the Supreme Court after the Sixth Circuit, sitting en banc, had reversed the defendant’s conviction in a majority opinion that expressed stronger objections to Section 242 as “too indefinite and vague to meet due process standards”237 than any court had ventured since Screws was decided. Yet the Supreme Court not only declined to declare the statute unconstitutionally vague; the Court upheld it in a unanimous opinion that might be thought of as Screws Lite—an opinion that could have provided a predicate for federal prosecutors in Ferguson to convince a trial court to adopt the clearly-established-law standard of willfulness,238 instead of coming up with an interpretation that may have delivered Tom Clark’s “dead letter.”

Foremost among the issues at stake is the extent to which the Justice Department Memorandum is not just about Ferguson. It announces a general standard of liability that signals the end of federal indictments of police officers for civil rights violations, except in cases where there is no doubt that the officer knows he is acting unlawfully, as in the case of the forcible sodomy of Abner Louima with a broken-off broom handle in a bathroom of a New York City police station,239 or where a cell phone or body camera captures a suspect being shot in the back multiple times as he flees from a routine traffic stop,240 or in cases in which a prosecutor can prove that the officer was motivated by racial animus.241It makes no sense for advocates of policing reform to call for the Justice Department to take over all investigations of officer-involved shootings, as the 2016 Democratic National Platform proposed,242 as long as the Department continues to construe willfulness to require consciousness of wrongdoing. Unless the Attorney General withdraws the Ferguson Memorandum, it is unlikely that federal civil rights charges will be filed in cases in which the Justice Department has intervened, like the shooting death of Alton Sterling in Baton Rouge243 where the officers believed they were “completely justified” in killing Sterling.244 Given the Justice Department’s legal interpretation, the officers’ belief at the time of the shooting that they were acting lawfully, even though that belief may have been unreasonable, is alone sufficient to preclude a conviction on civil rights charges. Similarly, in the Staten Island case in which a New York City police officer is seen on a cellphone video applying a chokehold to Eric Garner as he says “I can’t breathe” eleven times before expiring, the legal position of the Justice Department, which still had not decided whether to file criminal charges by the time Attorney General Loretta Lynch left office,245 bars a federal prosecution if the officer acted without consciousness of wrongdoing. This seems an almost impossible burden to meet in the Garner case, in which the officer testified before a grand jury in Staten Island that even though he had his arm around Garner’s neck, he did not intend the move to function as a “chokehold,” which is banned by the New York City Police Department, but rather as a permissible “takedown” maneuver, which he learned in the Police Academy.246 Unless federal prosecutors can prove beyond a reasonable doubt that the officer is lying, his lack of consciousness of wrongdoing would dictate an acquittal. No Justice Department Trial Attorney or Assistant U.S. Attorney can expect to win hard cases of officer-involved shootings with such a radically subjective standard of liability.247

Reform-minded elected officials, police chiefs, and law enforcement experts will no doubt continue to respond to the ongoing crisis with proposals for better training, including education about implicit racial bias; new policies for body cameras and other technology; and the adoption of strategies to promote community policing, all of which are among the 2015 recommendations of The President’s Task Force on 21^st Century Policing.248 In the absence of voluntary reform, pattern-or-practice lawsuits filed by the Justice Department249 or consent decrees induced by such litigation (like the judicially enforceable agreement entered into between the city of Ferguson and the Special Litigation Section of the Civil Rights Division),250 can compel departmental reconstruction. But, as essential as these remedies may be, they obscure the gravamen of the complaint by African-American communities about policing in their neighborhoods: the failure of the rule of law. Even if more effective police training and programs to improve police-community relations were to result in officers acting lawfully in ninety-nine percent of citizen encounters, but in the remaining one percent no officers were prosecuted when unlawful conduct resulted in death or serious bodily injury, this impunity would constitute a 100 percent failure to enforce the rule of law. The most important ingredient in building the “trust between law enforcement agencies and the people they protect,” cited by the President’s Task Force as “the key” to solving the problem of race and policing,251 is for African Americans to believe that when police officers use force unlawfully, the legal system will punish them accordingly.

The Justice Department endures as one of the few law enforcement agencies trusted by communities of color, and if that bond is broken, whatever faith remains in the legitimacy of the criminal justice system will shatter. The first step toward preserving that confidence would be for a future Attorney General to withdraw the Ferguson Memorandum and its baleful interpretation of Screws as requiring knowledge of unlawfulness. Federal prosecutors should pursue a new policy of advocacy in lower federal courts, aimed at lowering the standard of proof by elevating Lanier to its rightful place at the center of the constitutional canon governing civil rights prosecutions, and at making the argument that willfulness does not require a specific intent to violate a right, but only a violation of a right that was “clearly established,” as that term was originally defined in Lanier.

Although the political obstacles are daunting, the ultimate goal should be to lower the standard of proof by calling upon Congress to amend 18 U.S.C. § 242.252 This Article proposes legislation253 that would make it less onerous to prosecute a civil rights violation by striking from the statute the word “willfully,” and replacing it with Lanier’s clearly-established-law standard, using language that does not run afoul of the newly restrictive concept of reasonableness in the Court’s qualified-immunity jurisprudence.254 Until such an amendment can be passed, civil rights groups, grassroots organizations, and other advocates of law reform should bear in mind that the President and the Attorney General have the power to act unilaterally. In much the same way that President Obama used his executive power to revise the law governing enhanced interrogations by repudiating a notorious Justice Department memorandum on torture,255 a future Administration, even without congressional legislation, can change the law governing civil rights prosecutions.256

The Confederate flag may have been removed from the statehouse grounds in South Carolina, but in the dawn’s early light of surrender of the Attorney General on the battlefield of Ferguson, it still flies over the place in that Reconstruction-era statute where, thirty-five years after its original enactment, Congress inserted the term “willfully”—a word that may live as infamously in the history of civil rights as the words of interposition and nullification.

The Michael Brown, Jr., Civil Rights Enforcement Act of 2017

18 U.S.C. § 242

TITLE 18. CRIMES AND CRIMINAL PROCEDURE, § 242. Deprivation of Rights Under Color of Law.

(a) Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any clearly established rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

(b) Any right protected under subsection (a) is clearly established if, at the time the offense is alleged to have occurred, the right was sufficiently defined by judicial decisions that a reasonable person would have understood that the official’s conduct violated the right.257