This winter, my daughter’s first-grade class celebrated the birthday of Martin Luther King, Jr. at her elementary school in our small Midwestern town. Snippets of King’s most famous speeches and pictures of his head, crafted from brown and black construction paper, lined the school hallways. Teachers gave lessons to help young students comprehend an American past with racial segregation, and how a great leader helped to overcome it through nonviolent action and the pursuit of a dream.

As my daughter grows older, she will learn about the parts of King’s dream that have gone unfulfilled. I hope she will come to understand the true breadth of the civil rights movement—how it extends beyond the brief period she studied in elementary school, into both the past and the future.

Perhaps the most troubling unattained goal of the civil rights movement is ending police brutality and use of deadly force. The desire to be free from disproportionate police violence is as old as the civil rights movement itself. It has been a core part of the agenda of rights groups and leaders from the NAACP to Black Lives Matter.

“We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality,” Martin Luther King, Jr. said during his address at the March on Washington in 1963. “We want an immediate end to police brutality and murder of black people,” reads the seventh of 10 points in the Black Panther Party Platform of 1966.

To understand how some police forces in the United States have long been able to perpetuate a resistance to the expansion of personal liberty for minorities, we should inspect the federalist roots of our government.

The permissible limits of law enforcement bodies have always been set by state and local governments, and their goals are inherently at odds with the federally derived world of civil liberties articulated in the Bill of Rights. In fact, most of the protections in the Bill of Rights did not even apply to state or local officials until the 1950s.

The U.S. government took little interest in protecting African-Americans until the Civil War. In Reconstruction-era legislation, Congress planted the seeds of federal protection that would lie dormant for decades until the Franklin D. Roosevelt administration determined to cultivate them after all.

This decision opened an era of federal activism on police brutality, including a set of Supreme Court decisions that aimed to end unconstitutional police methods by making the states observe the protections for criminal defendants outlined in the Bill of Rights.

Yet police brutality persisted, sparking riots in desperately impoverished communities throughout the 1970s and 1980s.

Like the rest of civil rights history, this story is not one of ultimate victory but of ongoing struggle.

The Police Power

Over the course of U.S. history, our governments have found it difficult to regulate police behavior. By the founders’ design, most law enforcement officers’ authority is not derived from the federal government. Rather, it lies within a realm of authority known as the police power.

The police power is much broader than law enforcement itself. It includes authority to regulate moral life (with laws on drinking, gambling, and sex), build roads and schools, control capital and labor, and endow local governments with power. States created the vast majority of laws respecting slavery and, later, those that ensconced Jim Crow. “In truth, state governments possessed a staggering freedom of action,” historian Gary Gerstle writes in a new book on the “paradox of American government.”

In terms of protecting individual rights, the revolutionary framers were far more wary of oppression by a central state than by local majoritarian rule. In the 10th Amendment, they stipulated that powers not specifically granted to the U.S. government in the Constitution are “reserved to the states respectively, or to the people.”

In actually wielding these un-enumerated powers, state governments drew upon the doctrine of police power, rooted in English common law. This second theory of governance privileged the public good over individual rights, and was often at odds with the liberal Constitutional principles that guided the activities of the federal government.

Law enforcement falls squarely under the heading of these broader police powers, as the name suggests. Tasked with securing the safety of the public from criminal activities, local police forces maintain broad and often invisible power over the lives of ordinary citizens.

Lynching graphic, part the “Report of the President’s Committee on Civil Rights,” 1946 

U.S. communities get the police forces that they want or are willing to permit. Whether by direct election (as a sheriff) or through an elected body such as a city council, police forces indeed derive their power from the people.

The Supreme Court has historically moved to curtail federal efforts to control or mandate the behavior of the police. At the end of the 19th century, the court struck down many provisions of the Reconstruction-era Civil Rights Acts, laws intended to provide federal enforcement of the new citizenship rights of former slaves.

States were left to govern their own race relations, with consequences that should be well known to students of U.S. history: debt peonage, disfranchisement, segregation, and lynching. The abrupt withdrawal of federal rights enforcement in the South by 1877 left a ripe environment for legislated hate and unattenuated terror. Lynch law and police brutality were often indistinguishable. Some enforcement officers in former Confederate states condoned and even carried out summary justice.

It turned out that the use of excessive force by local law enforcement officers was not solely a Southern problem. As urban populations swelled with migrants and immigrants at the turn of the century, police brutality plagued cities as well. Newspapers noted the frequency with which working-class citizens were apprehended without cause, beaten on the street or in jail, or tortured into confessing a crime.

Prisoner abuse scandals dogged police departments in Seattle, Los Angeles, and Chicago.“Not a week passes without some new instance of the injury or death of a prisoner somewhere in the United States,” the editors of the Los Angeles Herald fumed in 1910 after a resident of that city died in custody. “The police of this country apparently cannot rid themselves of a delusion they are invested with judiciary powers and can discipline as well as arrest suspects and accused persons.”

Rights organizations and the black press labored to place the ongoing problem of police brutality in the public eye and to press legal cases against officers of the law who abused their power. They chronicled police beatings and murder to little avail; state and local prosecutors and juries were rarely willing to punish them. It would take federal intervention to force a breakthrough on police brutality.

Quest for a Sword

The U. S. Department of Justice, working with the Federal Bureau of Investigation, can bring charges against local police under “Section 242,” one of the few pieces of civil rights law remaining from the Reconstruction era.

This part of the federal criminal code, which makes it a crime for any person acting “under color of law” to willfully abridge an individual’s constitutional rights, began its life in the Civil Rights Act of 1866. Intended by a Radical Republican Congress to provide federal enforcement of former slaves’ rights as citizens, the act’s provisions were pilloried by the Supreme Court and then left to gather dust until the 1930s by Southern Democrats and laissez-faire Republicans.

But in a characteristically creative move, Franklin D. Roosevelt’s administration saw in the old statutes their best chance to bring the police to heel. Using these “ancient and even archaic” statutes to force the states to respect civil liberties was a New Deal experiment, wrote political scientist Robert K. Carr in 1947.

Creating the civil rights unit in the Department of Justice was one of the first actions Frank Murphy (left)—a former governor of Michigan,mayor of Detroit, and U.S. attorney—took when FDR appointed him Attorney General in 1939. “Where there is social unrest … we ought to be more anxious and vigorous in protecting the civil liberties of protesting and insecure people,” Murphy told reporters just after taking office.

Murphy’s written order made it clear the unit’s main function was to prosecute local authorities for civil rights violations. He directed his staff to dust off the Reconstruction code “to determine the effect of those statutes under modern conditions in local communities.” This approach was judged more likely to succeed than asking Congress to provide a new statutory basis for policing the police.

In describing this work, Carr borrowed a metaphor from Justice Robert H. Jackson to explain the Civil Rights Section’s ideal of protecting civil rights with both a shield and a sword: “The shield … enables a person whose freedom is endangered to invoke the Constitution by requesting a federal court to invalidate the state action that is endangering his rights. The sword is a positive weapon wielded by the federal government, which takes the initiative in protecting helpless individuals by bringing criminal charges against persons who are encroaching upon their rights.”

Using this sword, the Civil Rights Section indicted Claude Screws, a Georgia sheriff who had beaten a handcuffed, unarmed black man to a bloody pulp in full public view and dragged him into a jail cell. Screws called an ambulance several hours later, but the young auto mechanic Robert Hall died moments after he was admitted, on January 30, 1943.

The nauseating details of Hall’s death, the fabricated arrest warrant used to apprehend him, the numerous eyewitnesses, and evidence of the sheriff’s intent to harm Hall amounted to an ideal case for testing Section 242. The state of Georgia refused to prosecute Screws for Hall’s murder, so Murphy charged the sheriff with a federal crime.

“Armed with an old law and a new zeal,” as one contemporary observer noted, the Civil Rights Section prosecuted Screws and two accomplices for denying Hall his right not to be deprived of life without due process of law—a protection derived from the 14th Amendment, directed squarely at the states.

From the outset, the case looked good. All three men were convicted by an Albany, Georgia jury and the decision was upheld on appeal by the Fifth Circuit Court. When the defendants’ appeal reached the Supreme Court, however, the fate of Section 242 would be decided. Would the court provide a narrow interpretation as it had for other Reconstruction-era civil rights statutes? Worse, would it invalidate the law altogether?

The 1945 decision in Screws v. United States did neither, much to the relief of the Civil Rights Section lawyers. Still, the results of the case were somewhat mixed.

One major issue had been to establish what the phrase “under color of law” meant. It had long been construed as “legally,” meaning it could not apply to the clearly illegal actions of the Screws defendants. Earlier Supreme Court decisions had held that the 14th Amendment was enforceable against the states, but not against individuals acting on their own; indeed, this rationale was part of the defense’s argument.

The decision in Screws held that the three policemen were acting “under color of law”—in their official capacities as law enforcement officers—when they arrested and detained Hall.

Three dissenting justices argued that this interpretation of the phrase would fundamentally alter the balance of power between the federal and state governments by rendering “every lawless act of the policeman on the beat” a federal crime.

The defense also argued that the law was vague; the “due process” rights the police were charged with violating were not clearly defined. The court answered this by emphasizing the law’s requirement that the defendant acted “willfully” to deprive the victim of constitutional rights—with specific intent—a high standard of proof.

The officers were retried and acquitted by a jury that was, this time, instructed at length on the willfulness issue. Rendered a free man, Sheriff Screws soon won election to the Georgia State Senate.

A majority of commentators, both at the time and today, look at the Screws case as a setback for civil rights jurisprudence, when the difficult standard of willfulness was added to the prosecution’s burden of proof. But some argue that the decision actually marked, in U.S. Circuit Judge Paul J. Watford’s (left) words, “the birth of federal civil rights enforcement.” As he said in 2014, the most immediate effect of the decision was to secure a federal role to combat police brutality toward minorities.

“Had the statute instead been struck down, the power of the federal government to prosecute such abuses would have been drastically curtailed,” Watford said. “No other statute remained that would have allowed the federal government to prosecute violations of the most basic rights under the Fourteenth Amendment.”

At the time of the ruling (1945), the editors of the Chicago Daily Tribune praised it as a victory for civil rights, writing that the high court had “rediscovered the 14th Amendment.” The Civil Rights Section “has just been given a charter—oddly enough, an 80 year old charter—upon which to proceed against such police officers as Screws,” they wrote. “The people of this country, we suspect, will welcome the decision for the means it may afford of ending a dark chapter in law enforcement in this country.”