August 11, 2022 | Reading Time: 4 minutes
Breonna Taylor and how a civil rights law from 1866 could pave the way to police accountability and federal intervention
Is the Justice Department re-embracing its original mandate?
On March 13, 2020, police officers used a fraudulently obtained no-knock warrant to break into Breonna Taylor’s home in Louisville, Kentucky and fire 32 rounds, killing her while she slept.
While there was immediate outrage, there has been little in the way of legal accountability for the Louisville metro police officers who shot her or the ones involved in obtaining the warrant.
But last week, the US Department of Justice finally announced federal charges against four cops involved with the shooting.
Prosecuting white power
Justice was initially formed to protect the rights of African Americans after the Civil War. While it has mostly abdicated responsibility of its original purpose, prosecuting Breonna Taylor’s murderers and other similar cases could fulfill the promise of early civil rights litigation.
According to President Grant, the first mandate of the newly formed Department of Justice was to preserve civil rights and prosecute those fighting against the 13th, 14th, and 15th Amendments.
The Justice Department was created by a bill signed by President Grant on June 22, 1870. The first full-time attorney general appointed to lead this new “law department” was Amos T. Ackerman.
The first mandate of this newly formed federal department, according to Grant, was to preserve civil rights and prosecute those fighting against the 13th, 14th, and 15th Amendments.
The organization posing the greatest risk to civil rights and freed Black people was the Ku Klux Klan. Congress passed the Ku Klux Klan Act, or the Enforcement Acts, to empower the government to target and subdue the Klan through legal and even violent means.
Section 1983 of the KKK Act provided a civil cause of action to recover damages for the deprivation of civil rights. Section 242 of 18 U.S.C., passed with the Civil Rights Act of 1866, made it a federal criminal offense to willfully deprive someone of their constitutional rights.
By the end of 1871, under Ackerman’s leadership with Grant’s support, there were over 3,000 indictments and 600 convictions of Klansmen.
The newly formed Department of Justice was so successful in its mission it subdued the Klan in two years. Unfortunately, Grant fired Ackerman after his 1871 successes and undermined the supposed mandate of the Department of Justice to enforce civil rights.
One Grant biographer argued that Grant listened to the country’s commitment to white supremacy. “Men from the North as well as the South came to recognize, uneasily, that if he was not halted, his concept of equality before the law was likely to lead to total equality.”
It is obvious that the mission of the Department of Justice was originally meant to protect the civil rights of Black people but the 150-year history of the department has mostly shown disinterest. Between Reconstruction and the civil rights movement in the 20th century, Grant’s initial mandate seemed completely forgotten.
Retreating from white power
When the FBI was formed in 1908, then called the Bureau of Investigation, it was in large part in response to the 1901 assassination of President McKinley, which served the myth that immigrant anarchists were attacking the United States.
The first major task of the BOI was to research prostitution in order to enforce the imminent congressional passage of the Mann Act, or the “White Slavery Act.” Rather than supporting Civil Rights, the Mann Act was mostly used to police interracial relationships.
By the 1950s, the FBI was explicitly hostile to civil rights, even surveilling Martin Luther King, believing the movement to be full of communists. They offered little help against the Klan this time.
In the 1950s, US Attorney General Herbert Brownell convinced Eisenhower to federalize the National Guard to help desegregate schools. Brownell was a principle architect of the Civil Rights Act of 1957 that created the DOJ’s Civil Rights Division, but stepped down because he was more supportive of civil rights than Eisenhower.
The DOJ had a mixed record on civil rights during the Kennedy presidency (and Robert Kennedy’s tenure as AG). Behind the scenes Robert Kennedy intervened to support the safety of the Freedom Riders and other desegregation efforts, but he also approved FBI surveillance of King and would not risk alienating white southerners.
Embracing its original mandate
It wasn’t until 1964 that the FBI did anything meaningful to support the original civil rights mission of the Department of Justice.
That summer, three civil rights workers (James Chaney, Andrew Goodman, and Michael Schwerner) disappeared in Mississippi. Two of the three civil rights workers were white and from New York so the incident garnered national attention and outrage, though the Klan targeted the group because they were Black and Jewish.
After civil rights leader Medgar Evans had been killed the previous year in Mississippi, the FBI was nowhere to be found. Finally, in response to President Johnson’s urging, Hoover responded to the widespread southern terrorism against civil rights workers and opened a field office is Jackson, Mississippi.
The FBI investigated the murders but the state declined to prosecute. In 1967, the Department of Justice charged 18 people with civil rights violations related to the murders under Sections 1983 and 242. Seven were convicted but received relatively minor sentences. This wasn’t the only federal prosecution in response to southern racist terrorism but they were few and far between.
A path forward
Breonna Taylor’s killers are now being charged under Section 242 for criminal civil rights violations. Three of the police officers are accused of participating in falsifying an affidavit to get a search warrant. The fourth has been indicted for shooting into Breonna Taylor’s home through a covered window and covered glass door.
These officers allegedly deprived Taylor of her constitutional rights when they presented a false affidavit to obtain a search warrant for Taylor’s home and when unconstitutionally excessive force was used.
Section 242 was also used to successfully charge two officers involved in the 1991 beating of Rodney King. The Brennan Center’s Hernandez D. Stroud says that with a few tweaks, Section 242 could be the path for police accountability and federal intervention.
It is time for Justice to embrace its original mandate.
We are facing increased political violence, a rising climate of hate crimes and empowered white nationalists. People are frustrated with local authorities’ inaction and seemingly immune vigilante police.
Justice has the tools to protect our civil rights through litigation whether the Congress strengthens existing criminal laws.
This prosecution of Breonna Taylor’s killers is an important step.
I hope we see many more.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.