Color of Law
It is a crime for one or
more persons acting under color
of law willfully to deprive or conspire to deprive
another person of any right protected by the Constitution
or laws of the United States. "Color of law" simply
means that the person doing the act is using power
given to him or her by a governmental agency (local,
state or federal). Criminal acts under color of law
include acts not only done by local, state, or federal
officials within the bounds or limits of their lawful
authority, but also acts done beyond the bounds of
their lawful authority. Off-duty conduct may also be
covered under color of law, if the perpetrator asserted
their official status in some manner. Color of law
may include public officials who are not law enforcement
officers, for example, judges and prosecutors, as well
as, in some circumstances, non governmental employees
who are asserting state authority, such as private
security guards. While the federal authority to investigate
color of law type violations extends to any official
acting under "color of law", the vast majority
of the allegations are against the law enforcement
community. The average number of all federal civil
rights cases initiated by the FBI from 1997 -2000 was
3513. Of those cases initiated, about 73% were allegations
of color of law violations. Within the color of law
allegations, about 82% were allegations of abuse of
force with violence (59% of the total number of civil
rights cases initiated).
The Supreme Court has had
to interpret the United States Constitution to construct
law regulating the actions of those in the law enforcement
community. Enforcement of these provisions does not
require that any racial, religious, or other discriminatory
motive existed.
Investigative Areas
Most of the FBI's color
of law investigations would fall into five broad areas:
- excessive force;
- sexual assaults;
- false arrest/fabrication
of evidence;
- deprivation of property;
and
- failure to keep from
harm.
In
making arrests, maintaining order, and defending life,
law enforcement officers
are allowed to utilize whatever force is "reasonably" necessary.
The breath and scope of the use of force is vast. The
spectrum begins with the physical presence of the official
through the utilization of deadly force. While some
types of force used by law enforcement may be violent
by their very nature, they may be considered "reasonable," based
upon the circumstances. However, violations of federal
law occur where it can be shown that the force used
was willfully "unreasonable" or "excessive" against
individuals.
Sexual
assaults by officials acting under "color of law" could
happen in a variety of venues. They could occur in
court scenarios,
jails, and/or traffic stops to name just a few of the
settings where an official might use their position
of authority to coerce another individual into sexual
compliance. The compliance is generally gained because
of a threat of an official action against the other
if they do not comply.
The
Fourth Amendment of the United States Constitution
guarantees the right
against unreasonable searches or seizures. A law enforcement
official using his authority provided under the "color
of law" is allowed to stop individuals and even
if necessary to search them and retain their property
under certain circumstances. It is in the abuse of
that discretionary power that a violation of a person's
civil rights might occur. An unlawful detention or
an illegal confiscation of property would be examples
of such an abuse of power.
An official would violate
the color of law statute by fabricating evidence against
or conducting a false arrest of an individual. That
person's rights of due process and unreasonable seizure
have been violated. In the case of deprivation of property,
the official would violate the color of saw statute
by unlawfully obtaining or maintaining the property
of another. In that case, the official has overstepped
or misapplied his authority.
The Fourteenth Amendment
secures the right to due process and the Eighth Amendment
also prohibits the use of cruel and unusual punishment.
In an arrest or detention context, these rights would
prohibit the use of force amounting to punishment (summary
judgment). The idea being that a person accused of
a crime is to be allowed the opportunity to have a
trial and not be subjected to punishment without having
been afforded the opportunity of the legal process.
The public entrusts its
law enforcement officials with protecting the community.
If it is shown that an official willfully failed to
keep an individual from harm that official could be
in violation of the color of law statute.
Filing a Complaint
In order to file a complaint
alleging a violation of the criminal laws discussed
above, you may contact your local FBI office by telephone,
in writing, or in person. The following information
should be provided:
- all identifying information
for the victim(s);
- as much identifying
information as possible for the subject(s), including
position, rank, and agency employed;
- date and time of
incident;
- location and time
of incident;
- names, addresses,
and telephone numbers of any witness(es);
- a complete chronology
of events; and
- any report numbers
and charges with respect to the incident.
You may also contact the
United States Attorney's Office in your district, or
send a written complaint to:
Criminal Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66018
Washington, D.C. 20035-6018
Investigations vary in
length and although there are internal limitations,
the investigation will proceed to its logical conclusion.
The FBI is the investigative component of the Department
of Justice. It is, therefore, not responsible for the
prosecution of a case. That is the responsibility of
the Department of Justice, Washington, D.C., and the
United States Attorney's Office within the local jurisdiction.
After the FBI has completed its investigation, it forwards
its findings to the United States Attorney's Office
and to the Department of Justice. They then make the
determination as to whether to proceed toward prosecution
or not.
Civil Applications
Title
42, U.S.C., Section 14141,
makes it unlawful for state or local law enforcement
agencies to allow officers to engage in a pattern
or practice of conduct that deprives persons of rights
protected by the Constitution or laws of the United
States. This law is commonly referred to as the Police
Misconduct Statute. This law gives DOJ the authority
to seek civil remedies in cases where it is determined
that law enforcement agencies have policies or practices
which foster a pattern of misconduct by employees.
This action is directed against an agency, not against
individual officers. The types of issues which may
initiate a Pattern and Practice investigation include:
- Lack of supervision/monitoring
of officers' actions.
- Officers not providing
justification or reporting incidents involving
the use of force.
- Lack of, or improper
training of officers.
- A department having
a citizen complaint process which treats complainants
as adversaries.
Under Title 42, U.S.C., Section 1997, DOJ has the ability to initiate civil
actions against mental hospitals, retardation facilities, jails, prisons,
nursing homes, and juvenile detention facilities, when there are allegations
of systemic derivations of the constitutional rights of institutionalized
persons.