The Justice Department said last year that it was reviewing high-profile police shootings that fueled months of protests over police brutality. After a 29-year-old Black man named Jacob Blake was shot seven times in the back by a white officer in Kenosha, Wis., in August, the department said it had opened a civil rights investigation into the incident. It confirmed that the investigation was continuing in January, after the Kenosha County district attorney declined to charge the officer who shot Mr. Blake.
Similarly, the F.B.I. said in May that it was investigating the fatal shooting of Breonna Taylor, a Black health care worker in Louisville, Ky., after Gov. Andy Beshear asked local and federal investigators to look into the case. The results of the F.B.I. investigation have not been released, and the department has not said it will open a civil rights investigation into the officers involved in Ms. Taylor’s killing.
The statute was used successfully in hundreds of cases under the Obama administration, for instance, to convict officers of abusing their authority to sexually assault victims or to beat inmates, Mr. Smith said. But in the most high-profile police assault and killing cases, it has been seldom used.
This is one reason some former Justice Department officials and politicians like Vice President Kamala Harris, a former prosecutor, have advocated for either changing the statute so that willfulness is no longer the standard, or passing a new federal law that makes it illegal for an officer to recklessly deprive people of their civil rights, rather than willfully deprive them.
Judge Merrick B. Garland, Mr. Biden’s nominee to run the Justice Department, said on Monday during his Senate confirmation hearing that he would consult with the career lawyers in the civil rights division about whether to lower the willfulness standard.
“I’d like them to know from talking to them what kinds of changes might be necessary in the statute” and the potential consequences of changing the requirement, Judge Garland said.
That is not to say that the statute has never been successfully used in police brutality cases. When Mr. Barr was attorney general under President George H.W. Bush, he oversaw the investigation that led to the convictions of two officers who viciously beat the motorist Rodney King, even after they were acquitted on separate state charges.