Full opinion text
O’SCANNLAIN, Circuit Judge. A jury convicted appellants of federal civil rights crimes stemming from their actions as Oakland Housing Authority police officers. Their appeals raise a number of difficult questions, among them certain matters of first impression. We are required to decide what the government must prove to convict a law enforcement officer of depriving an individual of his federal constitutional right to be free of excessive force during detention or arrest. We also must decide whether criminal liability may be imposed on a commanding police officer who fails to prevent the use of excessive force by officers under his command. I The Oakland Housing Authority (the “OHA”) is a municipal agency that provides housing to low income residents in Oakland, California. The Oakland Housing Authority Police Department (the “OHAPD”) provides security and police services to the residents of OHA properties. Prior to the events with which we are here concerned, the OHAPD consisted of some two dozen officers, including one chief, three sergeants, and one corporal. Among the properties administered by the OHA were large public housing developments plagued by high levels of drug activity, much of it involving crack cocaine. In April 1989, a special drug suppression task force (the “Task Force”) was created within the OHAPD using funds provided by a federal grant. Six new officers were hired to man the Task Force, among them appellants Reese, Dwyer, and Houston. Officers Garden, Barryer, and Yee were the remaining members. Appellant Broussard, already an OHAPD sergeant, was chosen to command them. The Task Force operated as an independent unit within the department. The group was not assigned responsibility for patrolling any particular area, but was left free to deal with narcotics problems wherever they arose on OHA property. It held its daily group meetings apart from the regular OHAPD patrol officers. Its members worked on a single shift. At Broussard’s direction, the Task Force officers acted together virtually at all times while in the field. Typically, they would go out in two or three vehicles, drive up to an area on or near OHA property where they suspected drug activity, jump out of the vehicles, and, in the words of Officer Barryer, “just take anything and everything we saw on the street corner ... more or less like a wolf pack.” Broussard offered guidance to the men under his command in a number of respects around the time when the Task Force was first assembled. He told them, for example, that a lot of “dirty” drug money would be passing through their hands, and that it would not really matter if they kept some of it for themselves. The suspects, he noted, would be in no position to complain if some of their money came up missing. He also regularly exhorted Task Force officers to keep their arrest numbers up. All the officers were aware that the federal grant that funded their unit, and on which their jobs depended, was good for only eighteen to twenty-four months. Broussard warned that they would need statistics to show that the federal money was well spent and thus to secure another grant. On more than one occasion, he sent the Task Force out to begin a shift with comments like, “Let’s go out and kick ass,” and “[Ejverybody goes to jail tonight for everything, all right?” We turn now to the various incidents that were part of the government’s case at trial, whether charged as individual substantive violations or as overt acts in furtherance of appellants’ alleged conspiracy. On May 8, 1989, during the Task Force’s first night on patrol, Dwyer and Garden chased and caught a fleeing suspect in a parking lot. The two officers had the suspect on the ground and were beating him when other Task Force members stepped in; he did not appear to be resisting. Dwyer then walked the suspect over to one of the patrol cars and slammed him against it abruptly, so that his face and chest came down on the hood, even though the suspect was under control and in handcuffs at the time. Yee then pulled the suspect away from Dwyer, and the suspect was arrested for loitering. At the-Task Force’s briefing the next day, Dwyer told Yee he did not appreciate having his “investigation” interfered with. Garden received a cut on his face during this incident. In response, Broussard told his assembled officers that any suspect who injured a Task Force member had better end up going to the hospital himself. On other occasions, Broussard admonished his men that, if a suspect were to run from them, they should “catch him [and] whip his ass.” “No one runs,” Broussard told another OHAPD sergeant. “Those who run will pay.” On May 16,1989, at about 2:00 p.m., Jackie Dailey was helping to fix the ear of an OHA resident, across the street from his own residence. Task Force members arrived on the scene and ordered Dailey and the other individuals present to stand spread-eagled against the car while they were searched and their names checked for outstanding warrants. No such warrants were found, and the search revealed no contraband. Reese then approached Dailey and told him that he found the hat Dailey was wearing offensive. The hat had the words “One Pimp, six holes” written on it. Reese took the hat off Dailey’s head, ripped it, and threw it on the ground. He then seized Dailey by the neck and the back of the pants and threw him against the police car, then lifted him and threw him to the ground twice in succession. Houston then arrested Dailey for loitering. Brous-sard, the supervisor in charge at the time, was present at this incident and watched it develop, but took no steps to intercede. After his release from jail, Dailey went to a hospital emergency room, where an x-ray was taken. He was later diagnosed as having sustained a fracture of his right elbow. Pain medication was prescribed and his arm was placed in a sling, which prevented him from filling out the complaint form he wished to file with the OHA — a friend had to write out the complaint for him. On May 19, 1989, Dwyer attempted to place a suspect in the back seat of a patrol car. He found himself unable to do so because another suspect, Bryan Kiel, already in custody and handcuffed, had fallen asleep there. Dwyer twice told Kiel to move, then, receiving no response, kicked him hard in the chest. A meeting involving the members of the Task Force and the chief of the OHAPD was held in the wake of this incident. The chief told the officers that the use of unnecessary or excessive force would not be tolerated, that Dwyer had come close to being terminated, and that any officer guilty of using excessive force in the future would be. After the chief left, Dwyer confronted Yee, saying he would hold him directly responsible if he were fired. Houston then told Yee that he was not a team player and was not aggressive enough. Reese added that, while he had no problems with Yee personally, he “felt he had to watch his back and look over his shoulder when [Yee] was around, because he was afraid [Yee would] say something.” Both Reese and Houston told Yee he should consider leaving the Task Force. Broussard, who had said little to that point in the meeting, then stated that “team business should remain team business,” that matters involving Task Force members were the Task Force’s own affair, and that no one else need know about them. On this and other occasions, Broussard told his officers that “team business” was not to be discussed with OHA patrol officers. Any Task Force member who had a problem with this, he added, would be “severely dealt with” by Broussard himself. On May 23, 1989, Barryer conducted a pat search of Demetrius Findley. Barryer found nothing, and was prepared to release the suspect, but Broussard told him to continue the search. Barryer eventually discovered a plastic baggie containing suspected rock cocaine underneath Findley’s testicles. Barryer believed, however, that he had not had probable cause to conduct such an extensive search. He and Broussard discussed the problem of how to write up the arrest report in such a way as to make the search appear valid. Barryer proposed saying that he had felt something like a weapon in Find-ley’s pants, but Broussard rejected this idea on the grounds that it would not provide a strong enough case. Barryer then indicated that he would simply say that he had seen Findley throw the cocaine on the ground. “Yeah, that’ll work,” Broussard said. Bar-ryer wrote up his report in these terms, and Broussard read and approved the report. The following month, Barryer was subpoenaed to testify in court in connection with the Findley arrest. Upon meeting with the deputy district attorney, however, Barryer indicated that he would be unable to testify to what he had said in his arrest report because it was false. He was then released from his subpoena. Barryer returned to the OHAPD where he related these events first to the chief and then to Broussard. Broussard insisted that Barryer should have testified to what he had written in the report, saying, “Who do you think they’re going to believe, you or the dirt bag?” Barryer was fired two weeks later for having falsified his report. On the night of June 1,1989, a Task Force patrol car carrying Barryer, Dwyer, and Reese crashed into a backstop while pursuing David McClendon across a baseball field. Barryer, the driver of the car, chased McClendon on foot up an adjacent street, then caught him and threw him to the ground. Dwyer arrived promptly thereafter. Barryer had McClendon under control and was preparing to handcuff him when Garden’s voice came through over his radio saying that Reese had been injured in the crash. Dwyer then hit McClendon on the top of the head with his flashlight, causing a wound that required twenty-five stitches to close. McClendon was brought back to the ball field, where Broussard’s attention was drawn to the bloody wound on his head. Broussard then stated that McClendon would have to be arrested for something in order to justify his injury and his trip to the hospital. Garden wrote a false report stating that he had seen McClendon discard rock cocaine while running from Task Force officers, and that he had dropped a package of narcotics while being transferred from one patrol car to another. On June 2, 1989, Task Force members stopped Edward Jackson, a juvenile, walking across a parking lot. Reese searched Jackson, including his underwear, but found nothing and told him to go. Broussard then produced a plastic bag of rock cocaine from a nearby hole in the ground. Jackson denied the drugs were his, but was arrested anyway. Reese wrote a report stating that he and Garden had observed Jackson for some fifteen minutes, and had seen him return frequently to the hole in the ground, where he inspected a plastic bag and removed things from it. The report was false. Later that month, Jackson came up for trial in juvenile court. Garden, reading the report Reese had written for the first time on the day of the trial, told Reese they were going to have to get their stories together. They met during breaks in the trial, and visited the scene of the arrest during the lunch recess, agreeing upon the content of their testimony. Jackson was found guilty of possessing cocaine for sale. On returning to OHAPD headquarters, Garden and Reese told Dwyer that they had “lied [their] asses off in court” that day. On the evening of June 29, 1989, Glen Losh was sitting with his girlfriend in his pickup truck, parked near OHA property. The Task Force, with all appellants present, pulled up behind them. Reese removed Losh from the truck and frisked him, then directed him to cross the sidewalk and to place his hands above his head against a fence. Reese then asked Losh what he was doing in the area. When Losh replied that he was there to sell an extra car battery he had acquired, Reese accused him of lying, and struck him with the heel or palm of his hand in the ribs on both sides of his body, knocking the wind out of him and causing him to fall to his knees. Reese then frisked Losh again and removed his billfold and $30 in cash. He asked again why Losh was in the area, and what he, a white person, was doing in a black neighborhood. Reese then held up Losh’s money — a twenty-dollar bill and two five-dollar bills — and said, “It looks like you have ten dollars.” Reese threw the two fives on the ground, and put the twenty in his pocket. Losh never received the money back. Garden and Broussard searched Losh’s truck. Garden found a mirror, a gold razor blade, and a gold straw, items that he considered to be cocaine paraphernalia, which he smashed in the street. Garden confronted Losh about these items, pulling his beard and backhanding him across the mouth to get his attention. Houston, meanwhile, came over and questioned Losh further regarding his presence in the area, striking him in the lower back near the kidneys more than once. Losh was not arrested. During this same shift, early on the morning of June 30, 1989, the same Task Force officers encountered Rosie Verduzeo and her husband Salvador. The two were sitting in their car, parked near OHA property in front of the home of Salvador’s parents; Salvador was talking to his brother David Verduzeo and his cousin Michael Guzman, who stood on the sidewalk. Arriving on the scene, the officers ordered Rosie and Salvador to get out of their car and to place their hands on the roof, which they did. Rosie was searched and her identification was taken by one of the officers. She then asked Houston, who was standing to her left, what the problem was. He responded by saying, “Shut up, bitch.” Rosie kept asking questions, and Houston repeatedly responded with the same phrase. Eventually, Houston grabbed Rosie’s hair, then yanked her head back over her shoulder so that she was looking at him. He did this several times. At no time did Rosie take her hands off the roof of the car or make any moves toward Houston. Finally, Houston shoved Rosie against the side of the car and struck her on the head with his flashlight. The laceration bled profusely and later required two staples to close. Rosie was arrested for resisting arrest and for having an open container in her car. Broussard was standing five to ten feet behind Houston as this incident unfolded. Meanwhile, Salvador stood spread-eagled on the opposite side of the car, his legs apart and his hands on the roof. When he protested against Houston’s treatment of his wife, Dwyer kicked him in the testicles from behind, telling him to shut up, and adding, “How do you like that, wetback”? Salvador was not arrested. The OHA received numerous citizen complaints regarding the conduct of OHAPD officers during the period between May and July 1989. On one occasion, OHAPD Sergeant Watson spoke to Broussard about complaints alleging the use of excessive force. Broussard said he was not aware of any such problems involving the members of the Task Force, but he would bring the matter to the attention of his men. Watson also spoke to Dwyer, Houston, and Reese about the complaints, and told them not to use more force than was necessary, and to document properly any incident in which they resorted to force. When the other OHA sergeant, Sergeant Santiago, spoke to Broussard about the increased number of citizen complaints, he was told: “Don’t worry about it. They’re-just dope dealers and ... they don’t have any complaint.”' Asked specifically about the complaints filed by Glen Losh and his girlfriend, Broussard said, “Oh, they were just out there to buy dope.” On one occasion, when Broussard was delayed in arriving at work, Santiago convened a special joint briefing session of the Task Force and regular patrol officers. He discussed the influx of internal affairs complaints about excessive force and the theft of money and property, and warned the officers that such conduct would not be condoned, and could lead to an investigation by an outside agency. On August 13, 1989, Task Force officers encountered a group of black males. Searching the area across the street from the group, Garden found a box containing baggies of marijuana. Reese and Broussard conferred, and Reese then asked whose box-it was. When no one stepped forward, Reese announced that whoever was carrying the most money would go to jail. That person proved to be David Lyles, a juvenile, and he was promptly arrested. Reese wrote up an arrest report in which he stated that he and Garden had seen Lyles holding the box, and that Lyles had dropped the box and crossed the street when he saw the officers’ vehicle pull up. This was untrue. Nonetheless, Reese and Garden both testified in court to what Reese had written, and Lyles was found guilty. On August 25, 1989, acting on the basis of information received earlier that day, Reese and Houston stopped a car driven by Cliofus Soluno, a suspected drug supplier. Brous-sard, Garden, and Dwyer joined them, and Soluno’s trunk was searched. A large amount of marijuana and $2000 in cash was found in the trunk. Observing that Soluno, an undocumented alien from Mexico, would not miss the money, the five officers divided the cash among themselves. On or about September 23, 1989, Task Force members chased and caught a suspect in a field. No drugs were found on his person or anywhere near him. Dwyer went to the trunk of his patrol car, and retrieved a baggie containing three pieces of rock cocaine. Dwyer then wrote an arrest report stating that these drugs had been taken from the suspect. Houston and Garden, as well as Dwyer, maintained “stashes” of narcotics which they used against suspects at various times. On the night of October 7, 1989, Jerry Watkins was walking down the street in a neighborhood known as a “heavy drug area,” looking for his stepson. Dwyer jumped out of a civilian car, and, without identifying himself as a police officer, yelled at Watkins, ' “Come here, you son of a bitch, [or I’ll] kill you.” Frightened, Watkins attempted to escape through a backyard. Dwyer, however, caught up with him and struck him in the head with his flashlight as he attempted to climb through a hole in a fence. The wound Watkins received later required eight to ten stitches. Dwyer wrote a report stating that Watkins had dropped a piece of rock cocaine while attempting to flee; he submitted what he said was this cocaine into evidence. This report was false. On October 26, 1989, the Task Force stopped Keith Rogers. Dwyer began to search him for drugs and found a small baggie of marijuana. Dwyer continued the search, but Rogers grew belligerent when Dwyer moved to search his underwear. In response, Dwyer tried to rip Rogers’ underwear off him, then used a buck knife to cut it off, saying, “Fuck your rights. What about your rights now?” Broussard then directed the officers to drive Rogers to an area outside a closed OHA complex. Arriving there, the officers bent Rogers over the front of a patrol vehicle and held him there. Dwyer put on a pair rubber gloves and said, “The doctor is in,” then proceeded to perform a rectal search on Rogers. Rogers was visible from the street during this search. No drugs were found. On November 1, 1989, Task Force officers on patrol observed two black males looking into a brown paper bag. When the men saw the officers’ vehicle, they fled. The bag turned out to contain a large amount of rock cocaine, and Sherman Gay was arrested for its possession by Task Force Officer Williamson. Broussard explained to Williamson and Garden that Gay was a big time drug dealer and that he “definitely” needed to go to jail in connection with the drugs. A discussion ensued among the three officers regarding what Williamson should write in his arrest report, and Williamson suggested that he could write up the arrest as an observed hand-to-hand drug transaction. Williamson wrote the report accordingly, even though he had observed no such transaction. By November 1989, the activities of the Task Force had prompted an investigation by the Oakland Police Department and the Alameda County District Attorney’s Office. As part of the investigation, several videotaped undercover operations were conducted. Generally these operations involved an undercover officer, carrying a pager and a predetermined sum of money, standing on the sidewalk near OHA property with drugs placed somewhere nearby. The investigating officers would then call the OHA dispatcher to complain about the “drug dealer” who was working in that area, giving the undercover agent’s description. The jury viewed a number of these videotapes as evidence in appellants’ trial. On November 14, 1989, Officer Robert Pursley was working undercover in one of these operations. The drugs had been placed in a cigarette package; Pursley stood near the package, and once sat down next to it. Meanwhile, across the street from Purs-ley, genuine drug deals were being conducted by one Billy Cooley. The Task Force was dispatched to the scene. Garden told Pursley to get on the ground, then went across the street to Cooley. Dwyer then approached Pursley, straddled him and told him to roll over onto his back. Pursley rolled over with his arms extended, whereupon Dwyer hit Pursley in the hands with his flashlight and told him never to raise his hands to him again. Dwyer then kicked Pursley in the ribs, and grabbed him by the throat and started choking him, without provocation. On November 21,1989, Officer George El-zie assumed the role of the undercover agent in this operation, and was arrested by Reese. Elzie had been given $680 prior to being placed in the field. Together, Reese and Houston removed all of this money from Elzie’s pockets. However, Reese turned in just $280, and claimed in his arrest report that this was all that had been recovered from Elzie. The rest of the money was never accounted for. On November 24,1989, Dwyer and Garden arrested Darnell Wordlow. Wordlow was wearing a hooded jacket, and Dwyer wrapped its drawstrings around his throat so tightly that Wordlow began to choke. Word-low, having been handcuffed, could not loosen the strings, nor could any of the officers present manage to untie them; Garden was eventually forced to cut them with a pocket knife. Placing Wordlow in the back seat of the patrol car, Dwyer punched him repeatedly in the jaw, sending Wordlow into some kind of seizure. Wordlow had offered no resistance to Dwyer. On the basis of these incidents among others, appellants were tried by jury under a nineteen count indictment. The first count charged all four appellants with a criminal conspiracy whose object was the deprivation of constitutional rights, in violation of 18 U.S.C. § 241. The jury returned a verdict of guilty on the conspiracy count. The other counts delineated the specific substantive violations of these rights committed by the individual officers, in violation of 18 U.S.C. § 242. The jury voted to convict on most of these counts. In particular, each appellant was convicted for his role in one or more episodes involving excessive force. Appellants were sentenced under the Guidelines to terms ranging from thirty-six to ninety-six months. They filed timely notices of appeal. A panel of this court subsequently granted their motions for bail pending appeal. II The fundamental question raised in these appeals is whether the district court’s instructions to the jury properly set forth the law applicable to a criminal prosecution for federal civil rights violations. The relevant statutes are 18 U.S.C. § 241, originally enacted as the Enforcement Act of 1870, and 18 U.S.C. § 242, which derives from the Civil Rights Act of 1866. See United States v. Price, 383 U.S. 787, 800-20, 86 S.Ct. 1152, 1160-70, 16 L.Ed.2d 267 (1966). In their present form, these statutes establish criminal penalties (1) for conspiring to “injure” another “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” 18 U.S.C. § 241, and (2) for acting “willfully” “under color of any law” to “subject” another “to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 242. In interpreting these enactments, the Supreme Court’s plurality opinion in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), remains the touchstone for analysis. The defendants in Screws challenged their convictions under section 242 on the grounds that the statute was unconstitutionally vague, arguing that it lacked an “ascertainable standard of guilt” insofar as it mandated criminal penalties for acts in violation of whatever rights might be protected by the “broad and fluid definitions” of the Due Process Clause. Id. at 95, 65 S.Ct. at 1032. The Court acknowledged that section 242 might well be impermissibly vague if it were interpreted to require only general criminal intent to support a conviction. The general standard of intent holds that “[i]f a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.” 325 U.S. at 96, 65 S.Ct. at 1033 (quoting Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 602, 51 L.Ed. 1047 (1907)). Permitting guilt under section 242 to turn on this standard of intent, the Court suggested, could allow a law enforcement officer to be punished for doing “an act which some court later holds deprives a person of due process of law,” id., 325 U.S. at 97, 65 S.Ct. at 1033, casting serious doubt on that section’s constitutionality. The Court nonetheless turned back the defendants’ challenge. It did so by construing section 242’s reference to “willfulness” as requiring proof of “specific intent” in order to sustain a conviction for federal civil rights violations. Specific intent, according to Screws, “is an intent to deprive a person of 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.” 325 U.S. at 104, 65 S.Ct. at 1037. The Court explained that, so construed, section 242 would authorize punishment “only for an act knowingly done with the purpose of doing that which the statute prohibits,” so that “the accused cannot be said to suffer from lack of warning or knowledge that the act that he does is a violation of law.” Id. at 102, 65 S.Ct. at 1036. Accordingly, this construction “saves [section 242] from any charge of unconstitutionality on the grounds of vagueness.” Id. at 103, 65 S.Ct. at 1036. By the same token, the specific intent requirement prevents the statute from “becom[ing] a trap for law enforcement agencies acting in good faith.” Id. at 104, 65 S.Ct. at 1037. The meaning of “willfulness” and “specific intent” are thus of central importance in the resolution of these appeals. In Screws, the Court made clear that “it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for [the jury] to find that petitioners had the purpose to deprive the prisoner of a constitutional right....” 325 U.S. at 107, 65 S.Ct. at 1038. Yet the decision then goes on to say that “[t]he fact that the defendants may not have been thinking in constitutional terms is not material” to whether they acted willfully within the meaning of the statute. Id. at 106, 65 S.Ct. at 1037. Screws thus offers us a paradox: it tells us that one may act with the specific intent to violate a constitutional right without “thinking in constitutional terms”; that is, that one may have “the purpose to deprive [another] of a constitutional right” without knowing that the Constitution guarantees any such right. Yet how can one intend to deprive another of a right if one does not know that right exists? The paradox resolves itself through the Court’s explanation that to “act willfully in the sense in which we use the word [is to] act in open defiance or reckless disregard of a constitutional requirement that has been made specific and definite.” Id. at 105, 65 S.Ct. at 1037 (emphasis supplied). See United States v. Dise, 763 F.2d 586, 592 (3d Cir.) (noting that the “superficially conflicting mandates of Screws are reconciled by the Court’s recognition that willfulness encompasses ‘reckless disregard of a constitutional requirement’”), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 341 (1985). The meaning of “reckless disregard,” meanwhile, can be gleaned from the following passage: [I]t is plain that basic to the concept of due process of law in a criminal case is a trial — a trial in a court of law not a “trial by ordeal.” ... Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. Screws, 325 U.S. at 106, 65 S.Ct. at 1038. Here, the Court says that the purpose to deprive another of his right to trial by jury is “plain” from the wrongful conduct that in fact causes such a deprivation. Such intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness. The Court’s decisions since Screws are to the same effect. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), involved special police officers who used “brutal methods” to extract confessions from individuals suspected of a series of thefts. Id. at 98, 71 S.Ct. at 578. The Court stated that such acts served to deprive these individuals of “fundamental, basic, and well-established constitutional rights,” namely, the right to trial by jury and the right to refuse to testify against oneself. Id. at 101-02, 71 S.Ct. at 579. The Court had no difficulty concluding that the officers’ conduct evidenced a specific intent to interfere with the suspects’ rights: the officers “acted willfully and purposely; their aim was precisely to deny the protection the Constitution affords.” Id. at 102, 71 S.Ct. at 579. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), reinstated an indictment charging defendants with a conspiracy whose object was to intimidate blacks in the exercise of their right of interstate travel. The Court observed that a conspiracy to rob an interstate traveler does not necessarily violate section 241. For this, the specific intent to interfere with the right in question must be shown. Proof is thus required that “the predominant purpose of the conspiracy is to impede or prevent the exercise of the right to interstate travel, or to oppress a person because of his exercise of that right....” Id. at 760, 86 S.Ct. at 1179. Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), also involved a prosecution for conspiracy under 18 U.S.C. § 241. The conspirators had cast fraudulent votes in a primary election to select candidates for local, state, and federal office. They argued, however, that their real objective was to secure the nomination of a particular candidate for county commissioner, a local office. They maintained that since their purpose was to influence the outcome of a local election, rather than a federal election, they could not be found guilty of acting with a specific intent to interfere with federal voting rights. The Court affirmed the convictions. The evidence demonstrated that “each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal officers.” Id. at 224, 94 S.Ct. at 2262. This amounted to a willful deprivation of federal rights within the meaning of Screws: “The specific intent required under § 241 is ... the intent to have false votes cast and thereby to injure the rights of all voters in a federal election_” Id. That the conspirators were not animated by a desire to injure voters in the exercise of their federal voting rights was “irrelevant.” Id. at 226, 94 S.Ct. at 2263. “Every voter in a federal primary election ... has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. And whatever their motive, those who conspire to cast false votes in an election for federal office conspire to injure that right within the meaning of § 241.” Id. at 227, 94 S.Ct. at 2263-64 (emphasis supplied). See Screws, 325 U.S. at 106, 65 S.Ct. at 1037 (“he who alters ballots or without legal justification destroys them would be acting willfully” to deprive people of their right to vote under Article I of the Constitution). In all of these cases, the Court indicates that if a constitutional right is clearly delineated and the defendant acted “with the particular purpose of depriving the citizen victim of his enjoyment of the interests” that right protects, “he will be adjudged as a matter of law to have acted ‘willfully’ — i.e., ‘in reckless disregard of constitutional prohibitions or guarantees.’ ” United States v. Ehrlichman, 546 F.2d 910, 921 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). Armed with this understanding, we turn to appellants’ particular contentions on appeal. Ill Appellants mount three different challenges to the district court’s jury instructions on the counts alleging deprivation of the right to be free from the use of excessive force during arrest. First, appellants claim that the district court erred in relying on the Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), in defining the substantive right at issue. Second, appellants contend that the court’s instructions were erroneous because they failed to tell the jury that it must find that appellants used excessive force “with knowledge that such force was unlawful,” and with “the particular purpose to abuse official power for a governmental objective.” Finally, appellants argue that the instructions were misleading because, “taken as a whole and viewed in the light of the evidence, [they] informed the jury that they could find appellant[s] guilty merely upon finding that [they] used objectively unreasonable force,” effectively eliminating the specific intent requirement altogether. A Whether a jury instruction correctly sets forth the elements of a statutory crime is a question of law reviewed de novo. United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). The district court’s formulation of these elements for the jury is reviewed for abuse of discretion. Id. An abuse of discretion in this context occurs where the jury instructions taken as a whole are misleading or inadequate to guide the jury’s deliberations. United States v. Joetzki, 952 F.2d 1090, 1094 (9th Cir.1991). An apparent intra-circuit split of authority confounds the standard of review this court applies to a district court’s denial of a defendant’s proposed jury instruction. See United States v. Frank, 956 F.2d 872, 878 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992); but see United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992) (suggesting that there is no true conflict in our decisions, and that “the question turns on the issue for review”). The apparent conflict is of no relevance here. In this instance, the district court refused appellants’ proffered instructions on the ground that those instructions were contrary to law. Accordingly, we apply a de novo standard of review. B Appellants argue that the district court erred insofar as it relied on the Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), in formulating instructions on the right to be free of excessive force. In Graham, the Court held that “all claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment....” Id. at 395, 109 S.Ct. at 1871. In so holding, the Court expressly disapproved “indiscriminate” application of the four-part test established by Judge Friendly in Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), to cases involving claims of excessive force. Judge Friendly had located a general right to be free of such force in the guarantee of substantive due process, and had articulated a test requiring proof that force was applied “maliciously or sadistically for the very purpose of causing harm” rather than in “a good faith effort to maintain or restore order” to make out a constitutional violation. Id. at 1033. By contrast, Graham’s Fourth Amendment test is wholly objective: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. at 1872 (citations omitted). We have acknowledged the implications of the Graham decision in unambiguous terms. See Ward v. City of San Jose, 967 F.2d 280, 285 (9th Cir.1992) (“It is reversible error to give a substantive due process instruction in an excessive force case after Graham.”); Reed v. Hoy, 909 F.2d 324, 329 (9th Cir.1989) (“under Graham, excessive force claims arising before or during arrest are to be analyzed exclusively under the fourth amendment’s reasonableness standard”), cert. denied, - U.S. -, 111 S.Ct. 2887, 115 L.Ed.2d 1053 (1991). The district court was thus entirely correct to apply Graham in instructing the jury as to the constitutional right alleged to have been violated by appellants’ use of excessive force. Appellants nonetheless argue that the district court’s reliance on Graham was erroneous. In general, they suggest that, because Graham was a civil case arising under 42 U.S.C. § 1983, it is somehow an inappropriate model in the context of a criminal prosecution under section 242. More particularly, they suggest that because whether an officer acted willfully is excluded from consideration under Graham’s objective Fourth Amendment test, that case cannot be used to analyze the crime defined by the statute, of which willfulness is an element. These arguments betray'confusion regarding the structure of section 242. Appellants fail to grasp that the violation of a federally protected right and the specific intent to violate that right are separate elements of the crime established by the statute. The threshold question here, then, is whether appellants violated the constitutional rights of individuals they detained or arrested. If they did so, the next question would be whether they acted with the specific intent to violate those rights. These two questions are logically, and legally, independent. There is thus nothing wrong with looking to a civil case brought under 42 U.S.C. § 1983 for guidance as to the nature of the constitutional right whose alleged violation has been made the basis of a section 242 charge. The protections of the Constitution do not change according to the procedural context in which they are enforced — whether the allegation that constitutional rights have been transgressed is raised in a civil action or in a criminal prosecution, they are the same constitutional rights. Thus, the Supreme Court’s explanation of the right to be free from excessive force during arrest does not somehow lack authority here merely because it was set forth in a section 1983 case. See United States v. Schatzle, 901 F.2d 252, 254-55 (2d Cir.1990) (applying Graham in reviewing jury instruction in § 242 prosecution alleging deprivation of constitutional rights by the use of excessive force). These considerations explain why the district court committed no error in rejecting appellants’ proposed jury instructions. The instructions requested were drawn from excessive force cases that are simply irrelevant in light of Graham. In each of these cases, the rights alleged to have been infringed by excessive force were due process rights. Since Graham establishes that the use of excessive force during detention or arrest is to be analyzed under the Fourth Amendment, the instructions given in the cited cases offer no guidance. See Caballero v. Concord, 956 F.2d 204, 206 (9th Cir.1992) (“due process cases have little relevance to a 1983 action involving fourth amendment rights”) (citation and internal punctuation omitted). For example, appellees cite United States v. Cobb, 905 F.2d 784, 788 (4th Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991), in support of their request for an instruction phrased in terms of “whether force was applied ... maliciously and sadistically for the very purpose of causing harm.” Id. at 788. But in Cobb, the victim of the defendant’s excessive force was a pretrial detainee rather than an arrestee. The Fourth Circuit held that the rights at issue were thus substantive due process rights, see Graham, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10, and approved the above instruction because it tracks Judge Friendly’s Johnson test, which the court deemed applicable under the circumstances. See Cobb, 905 F.2d at 788-89. Cobb is therefore inapposite, and the requested instruction has no place here, where the constitutional violation alleged is, says Graham, a Fourth Amendment violation. Similarly, appellants’ request for an instruction requiring the jury to find that “force was used with the intention of inflicting summary punishment or otherwise depriving an individual of due process of law” was also properly denied. Even on its face it is evident that this instruction applies to cases implicating due process rights rather than Fourth Amendment rights. The eases cited in support of the instruction are, likewise, due process cases, and of no relevance in this context. See United States v. Messerlian, 832 F.2d 778, 791 (3d Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1291, 99 L.Ed.2d 501 (1988); United States v. Delerme, 457 F.2d 156, 157 (3d Cir.1972). The district court properly instructed the jury on the right to be free from excessive force during arrest. C We turn now to the district court’s instructions on specific intent. The court charged the jury that to be convicted under section 242, “a defendant must have acted willfully. I instruct you that an act is done ■willfully if it is done voluntarily and intentionally and with a specific intent to do something the law forbids, that is, with the intent to violate a specific protected right.” This is an accurate statement of the law as set forth in Screws. The court further instructed the jury that “[f]or the eight counts in which various defendants are charged with intentionally using unreasonable force, the requisite specific intent is the intent to use more force than is necessary under the circumstances.” This instruction is also quite correct. The critical point here is that a mere intention to use force that the jury ultimately finds unreasonable—that is, general criminal intent—is insufficient for conviction under section 242. This instruction indicates that the jury was required to find that appellants intended to use unreasonable force—that is, that they intended not only the force, but its unreasonableness, its character as “more than necessary under the circumstances.” This is precisely the specific intent required by Screws as applied to violations of the right to be free of unreasonable seizures of the person under the Fourth Amendment. Appellants nonetheless contend that these instructions were erroneous because they omitted necessary elements of the concept of specific intent as defined by Screws and its progeny. First, appellants suggest that the district court erred in failing to instruct the jury that it could convict on the excessive force counts only if it found that appellants knew their use of force was unlawful. The district court’s instruction, of course, informed the jury that it need find only that appellants knew their use of force was excessive: “the requisite specific intent is the intent to use more force than is necessary under the circumstances.” According to appellants, the district court compounded its error of omission by instructing the jury that “it is not necessary for you to find that the defendants were thinking in constitutional or legal terms at the time of the incidents, because a reckless disregard for a person’s constitutional rights is evidence of a specific intent to deprive that person of those rights” (emphasis supplied). Appellants suggest that the emphasized language is contrary to Screws, which, they maintain, teaches that “reckless disregard of a constitutional right occurs only when a person knowingly acts unlawfully.” Appellants are incorrect. As our analysis in Part II above makes clear, Screws says nothing whatsoever about whether the defendant officers knew that they acted outside the boundaries of state law when they beat their prisoner to death; such knowledge or lack thereof was irrelevant to the Court’s analysis of specific intent. The same observation applies to the Court’s decisions in Williams, Guest, and Anderson. The point of all these cases is that the defendant need not have been thinking about the law to have acted in reckless disregard of federal rights. Moreover, the weight of authority among the courts of appeals supports the view that “[t]here is no requirement under section 241 [or 242] that a defendant recognize the unlawfulness of his acts.” Ehrlichman, 546 F.2d at 922. See Apodaca v. United States, 188 F.2d 932, 937 (10th Cir.1951) (approving instruction that specific intent “does not require knowledge that [one’s] act is a violation of law”); see also United States v. Cobb, 905 F.2d 784, 788 (4th Cir.1990); United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986), cert. denied, 479 U.S. 1104, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987); United States v. Garza, 754 F.2d 1202, 1210 (5th Cir.1985); United States v. Dean, 722 F.2d 92, 94 (5th Cir.1983); United States v. Harrison, 671 F.2d 1159, 1162 (8th Cir.), cert. denied, 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 94 (1982); United States v. McClean, 528 F.2d 1250, 1255 (2d Cir.1976); United States v. Stokes, 506 F.2d 771, 776 (5th Cir.1975); United States v. O’Dell, 462 F.2d 224, 232 n. 10 (6th Cir.1972); United States v. Ramey, 336 F.2d 512, 515 (4th Cir.1964), cert. denied, 379 U.S. 972, 85 S.Ct. 649, 13 L.Ed.2d 564 (1965); Pullen v. United States, 164 F.2d 756, 758-59 (5th Cir.1947). In short, the district court did not err in failing to instruct the jury that appellants could not be convicted unless they “knowingly acted unlawfully.” The second alleged error of omission in the district court’s specific intent instructions points to the court’s failure to instruct that “the defendant must harbor the particular purpose that his conduct accomplish a governmental objective such as punishment or a ‘trial by ordeal’ ” before a conviction under section 242 may be returned. As we understand it, this contention conflates two different ideas that have been discussed in the reported cases in connection with the concept of specific intent, and presents them as separate legal requirements thereof. On the one hand, appellants argue that the court should have included in its instructions “a purpose to abuse governmental authority ... beyond the specific intent” to violate a constitutional right. Appellants claim to discern in each of the Supreme Court’s cases in this area some such particular governmental purpose: in Screws, a purpose to subject another to trial by ordeal rather than by jury; in Williams, a purpose to impose summary punishment; in Guest, a purpose to impede interstate travel; in Anderson, a purpose to interfere with the right to vote. Yet in none of these cases was the “purpose” so characterized anything “beyond” the specific intent necessary for conviction under sections 241 and 242. Rather, in each case, the purpose was the specific intent necessary for conviction. The “purposes” to which appellants point in these cases are merely descriptive of the due process rights alleged to have been infringed in each. For example, in Screws the Court described the specific intent requirement in terms of a purpose to subject another to “trial by ordeal” for the simple reason that the alleged constitutional violation was the “deprivation ... of the trial which due process guarantees....” 325 U.S. at 106, 65 S.Ct. at 1038. Since this ease involves deprivations of the right to be free from unreasonable force during detention and arrest, the district court correctly instructed the jury on the only “purpose” that was relevant to its deliberations: appellants’ alleged purpose to subject others to unreasonable force during detention and arrest. No “additional” purpose could properly have been required. On the other hand, appellants argue that the court should have required the jury to distinguish “between an act done for a purely personal, nongovernmental reason and that act done for an ostensible government reason.” The court, they argue, in failing to do so transformed appellants’ “personal act[s] of misconduct into ... violation^] of § 242.” But it is clear that appellants do not here identify an aspect of specific intent— they describe, rather, the requirement that acts punishable under section 242 be carried out “under color of law.” This case involves illegal conduct by law enforcement officers during the detention and arrest of criminal suspects, conduct that unquestionably took place under color of law. Even if they were animated by “purely personal reasons,” appellants would not be immunized from criminal liability under section 242. Conduct that is so motivated may nevertheless be conduct “under color of law,” and thus may result in a conviction under the statute. See United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991) (affirming conviction of deputy sheriff under § 242 for beating his wife’s former lover: Screws does not mean that an official acting “for purely personal reasons” does not act under color of law), cert. denied, — U.S. -, 112 S.Ct. 1960, 118 L.Ed.2d 562 (1992). Appellants’ contention that they acted “for purely personal reasons” is thus quite beside the point. The district court’s instructions on specific intent were not erroneous. D Appellants next contend that, taken as a whole, the district court’s instructions on excessive force were misleading in that they permitted the jury to convict merely upon a finding that they used objectively unreasonable force, without regard to the intent with which they acted. Appellants acknowledge that the jury was told that it must find that they intended to use more force than was necessary to effect the arrests in question. They point out, however, that the jury was then told to judge how much force was necessary from the point of view of a “reasonable” officer on the scene. Appellants argue that the juxtaposition of these two instructions was misleading. Specifically, they assert that the jury may have confused the subjective and objective components of the inquiry required by the district court, and so believed that the crime charged “boiled down” to whether objectively unreasonable force was employed. They contend that the court’s instructions effectively did away with the need for a finding as to their specific intent, indeed, for any finding as to mens rea. This argument has a certain superficial plausibility when the court’s instructions are redacted as they are in appellants’ briefs. When the relevant portions of those instructions are read in their entirety, however, it is plain that appellants’ position is without merit. The district court announced as separate elements of the crime charged (1) the requirement that a constitutional violation be proved and (2) the requirement that a specific intent to commit such a violation be proved. The fact that five separate examples of specific intent were then listed by the court could not have failed to impress upon the jury that specific intent is a distinct element of a section 242 violation. That appellants in their briefs refuse to distinguish clearly between the violation of a constitutional right and the specific intent to violate that right does not mean that the jury had any difficulty following the district court’s instructions, which set forth that distinction unmistakably. The jury instructions were adequate to guide the jury and were not misleading. IV In addition to his conviction for conspiracy under count one of the indictment, Sergeant Broussard was convicted on counts three and seven, each of which charged that he willfully permitted Task Force members under his supervision to use excessive force against individuals they were arresting, and took no steps to stop the assaults, thereby depriving these individuals of their constitutional right to be kept free from harm while in official custody or detention. On appeal, as he did at trial, Broussard argues that there was no legal basis for these convictions, because his failure to act did not “subject” these individuals to the deprivation of a right “secured or protected by the Constitution” within the meaning of section 242. He also contends that the evidence was insufficient to convict as to count seven. A Broussard contends that he had no legal obligation to act to prevent the assaults on Dailey and Verduzco. Stated differently, Broussard argues that there is no constitutional right to protection from such assaults, and that the district court erred in failing to dismiss counts three and seven of the indictment. We disagree. The Supreme Court has explained that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety.... [An] affirmative duty to protect arises ... from the limitation which [the state] has imposed on his freedom to act on his own behalf.” DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989). Indeed, the Court recognized over one hundred years ago that persons in the custody or control of law enforcement officers have a right to be protected from “lawless violence.” The prisoners were in the exclusive custody and control of the United States, under the protection of the United States, and in the peace of the United States. There was a co-extensive duty on the part of the United States to protect against lawless violence persons so within their custody, control, protection and peace; and a corresponding right of those persons, secured by the Constitution and laws of the United States, to be so protected by the United States. Logan v. United States, 144 U.S. 263, 285, 12 S.Ct. 617, 623, 36 L.Ed. 429 (1892). More than one law enforcement officer has been convicted of a federal criminal offense for transgressing this right. See Lynch v. United States, 189 F.2d 476, 479 (5th Cir.) (recognizing “the right of protection due the prisoner by the arresting officers” against harm from other officers and third parties alike), cert. denied, 342 U.S. 831, 72 S.Ct. 50, 96 L.Ed. 629 (1951); Catlette v. United States, 132 F.2d 902 (4th Cir.1943) (holding that “the failure of Catlette to protect the victims from group violence” after they were taken into custody “comes squarely within the provisions of’ the predecessor to § 242). In our own cases, meanwhile, we have similarly recognized that an individual constitutional right to protection may arise under certain narrowly defined circumstances, that is, when the state assumes a “special relationship” with a particular person by taking him into its custody, or when the state affirmatively creates the danger to which a person is exposed. See L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992); Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990). In sum, principles approved by the Supreme Court, recognized in previous section 242 prosecutions, and acknowledged in our own decisions compel the conclusion that Dailey and Verduzco enjoyed a constitutional right to be protected against the assaults perpetrated by Reese and Houston. B Broussard argues that, even if a right to such protection must be held to exist, no such right had been “made definite by decision or other rule of law” in 1989, when these assaults occurred. Screws, 325 U.S. at 103, 65 S.Ct. at 1036. This argument plainly cannot stand in the face of the authorities cited above. Indeed, to these we might add numerous decisions of our sister circuits, which uniformly recognize the right here at issue. It is true that all of these cases were civil actions under 42 U.S.C. § 1983, but, again, that is simply not relevant. Under Screws, it is the right at issue that must be “made definite by decision or other rule of law,” not the fact that the willful abrogation of that right may result in a criminal conviction. C Broussard also argues that liability under section 242 may not be predicated on a mere failure to act. This argument has little to recommend it. In terms, the statute extends to “the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 242 (emphasis supplied). In discussing the analogous language of section 241, the Supreme Court in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), had this to say: The language of § 241 is plain and unlimited. [It] embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States. * * * * * We think [its] history leaves no doubt that, if we are to give § 241 the scope its origins dictate, we must accord it a sweep as broad as its language. We are not at liberty to seek ingenious analytical instruments for excluding from its general language the Due Process Clause of the Fourteenth Amendment Id. at 800-01, 86 S.Ct. at 1160. The Court noted that, although section 242 in its original form was narrower in scope than section 241, “[t]he section was then broadened to include as wide a range of rights as § 241 already did.” Id. at 803, 86 S.Ct. at 1161. Accordingly, this court is “not at liberty” to exclude willful deprivations of the right to be protected from harm at the hands of law enforcement officers from the ambit of the federal criminal law. See United States v. Langer, 958 F.2d 522, 524 (2d Cir.1992) (“The Supreme Court has made it perfectly clear that ‘once a due process right has been defined and made specific by court decisions, that right is encompassed by § 242.’ ”) (quoting United States v. Stokes, 506 F.2d 771, 774-75 (5th Cir.1975)). Against this authority, Broussard cites only one ease, United States v. Hunter, 214 F.2d 356 (5th Cir.), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698 (1954). The citation is unhelpful. In Hunter, a Florida state attorney was indicted for failing to apply to the trial court for the release of a prisoner who had been detained as a material witness after the indictment against him was dismissed. The Fifth Circuit affirmed the dismissal of the charges against Hunter, holding that the law did not impose a duty on a prosecutor to apply for the release of a prisoner, so that the failure to make such application could not have violated the prisoner’s federal rights. The court then added a footnote in which it suggested that the language of section 242, imposing criminal liability on one who “willfully subjects” another to the deprivation of his federal rights, “implies so