Federal officials may use little-known civil rights statute in police shooting cases
Source: The Guardian
Paul Lewis in Washington
Wednesday 24 December 2014 08.39 EST
The families of at least four unarmed black men killed this year by police are pinning their hopes on possible federal prosecutions under a little-known civil rights statute that has only occasionally been used to indict officers in such cases.
The Department of Justice (DOJ), the FBI and local US attorneys’ offices have for weeks been examining the deaths of Michael Brown, Eric Garner and John Crawford III – all of whom were killed by police officers who grand juries later decided not to indict on state criminal charges.
Late on Monday, the DOJ announced it would review a fourth death: that of Dontre Hamilton, who was shot 14 times by a police officer following a confrontation in a park in Milwaukee, Wisconsin, in April.
The review was launched after the Milwaukee district attorney announced that Christopher Manney – the police officer who shot Hamilton, and who has since been fired – will not face charges.
In all four cases, federal officials are considering whether there is sufficient evidence to bring charges under a section of the US code that prohibits public officials from depriving an individual of constitutional rights under “color of law”.
Read more: http://www.theguardian.com/us-news/2014/dec/24/federal-review-michael-brown-eric-garner-crawford-hamilton
Do it, Holder!
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
rhett o rick
(55,981 posts)weren't they looking into the voting irregularities in the last election? They do a lot of "looking into" and not much more. Besides Holder's mind is on getting that high paying Wall Street job.
eggplant
(4,199 posts)rhett o rick
(55,981 posts)eggplant
(4,199 posts)I understood your point about he DOJ. I was correcting your example of Trayvon Martin within the context of the story.
rhett o rick
(55,981 posts)msanthrope
(37,549 posts)Android3.14
(5,402 posts)Last edited Wed Dec 24, 2014, 09:19 PM - Edit history (1)
The article cites several similar examples, none of which succeeded.
Response to Android3.14 (Reply #3)
Jesus Malverde This message was self-deleted by its author.
Android3.14
(5,402 posts)
Jesus Malverde
(10,274 posts)
Geoff R. Casavant
(2,381 posts)I have not read the linked article, but I seem to recall this is the same tactic used against the officers in the Rodney King beating way back in the 90s, after they were acquitted of state charges.
Kennah
(14,578 posts)
Feral Child
(2,086 posts)
ColesCountyDem
(6,944 posts)Anything but.
blkmusclmachine
(16,149 posts)crimes perpetrated by the 1%, committed right under their corrupt little noses.
branford
(4,462 posts)As the article correctly indicates, the law is very well known, but there are few cases because the legal standard that must be met in a federal prosecution is very high.
billhicks76
(5,082 posts)They are all over our threads this week like it's some kind of concerted push to manage public opinion. I've never seen any of them before. Seems like a waste given that people here have no more animosity towards cops than the normal amount most people feel these days especially given how they have used the Drug War to act like modern day redcoats. There are way more antagonistic political sites for cop PR teams to peruse.
branford
(4,462 posts)Would you kindly advise when the forum changed over to "billhicks76 (and those he agrees with) Underground?"
Guess what, there are a great many loyal and active Democrats, on DU and elsewhere, that do not agree with you on any number of matters. Welcome to the Democratic Party. Some of our members even include police officers.
Many, if not the overwhelming majority, of these same Democrats believe that we are a nation of laws, and understand and acknowledge that the police, no matter your level of disgust towards them, are entitled to the same constitutional and statutory protections as everyone else. Many are also no more willing to stereotype and generalize all police officers than we are all minority youth (or any other large group).
Do you have an actual opinion about the article from the OP? Despite the very misleading headline, and a sadly cursory legal analysis, the piece does try to explain why successful federal criminal civil rights prosecutions against state actors are exceedingly difficult.
billhicks76
(5,082 posts)I agree with most that you said. And although I argued with you earlier I certainly wasn't referring to you. I like many if your points even if my experiences differ greatly. I saw some posts later that were obvious trolls. And I thought it funny because they weren't DU commenters till now. I certainly don't think any thread is "mine" or "ours". I know many here who do and I don't like it.
branford
(4,462 posts)Happy holidays!
billhicks76
(5,082 posts)That you were the post above me. I purposefully didn't make it a reply so you didn't think I had a beef.
happyslug
(14,779 posts)Codified at 42 USC Section 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Here is the CRIMINAL section of the Anti-KKK Act of 1871:
http://www.law.cornell.edu/uscode/text/18/242
"The source of this section in the doings of the Ku Klux and the like is obvious and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. . . . This section dealt with Federal rights and with all Federal rights, and protected them in the lump . . . . [It should not be construed so] as to deprive citizens of the United States of the general protection which on its face § 19 [now § 241] most reasonably affords."
Here is some history behind the act:
It was not until the statutory revision of 1874 that the specific enumeration of protected rights was eliminated from § 242. The section was then broadened to include as wide a range of rights as § 241 already did: "any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States." The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance. n12 Section 241 was left essentially unchanged, and neither in the 1874 revision nor in any subsequent re-enactment has there been the slightest indication of a congressional intent to narrow or limit the original broad scope of § 241. It is clear, therefore, that § 241, from original enactment through subsequent codifications, was intended to deal, as Mr. Justice Holmes put it, with conspiracies to interfere with "Federal rights and with all Federal rights." We find no basis whatsoever for a judgment of Solomon which would give to the statute less than its words command.
The purpose and scope of the 1866 and 1870 enactments must be viewed against the events and passions of the time.The Civil War had ended in April 1865. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 "unreconstructed" States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress' requirements in 1868, the other four by 1870.
For a few years "radical" Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866 and a similar organization appeared with the romantic title of the Knights of the White Camellia. In 1868 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man.
Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865. Congress, on April 9, 1866, enacted the Civil Rights Act of 1866, which, as we have described, included § 242 in its originally narrow form. On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July 1868. In February 1869 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted.
In this context, it is hardly conceivable that Congress intended § 241 to apply only to a narrow and relatively unimportant category of rights. We cannot doubt that the purpose and effect of § 241 was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.
This is fully attested by the only statement explanatory of § 241 in the recorded congressional proceedings relative to its enactment. We refer to the speech of Senator Pool of North Carolina who introduced the provisions as an amendment to the Enforcement Act of 1870. The Senator's remarks are printed in full in the Appendix to this opinion. He urged that the section was needed in order to punish invasions of the newly adopted Fourteenth and Fifteenth Amendments to the Constitution. He acknowledged that the States as such were beyond the reach of the punitive process, and that the legislation must therefore operate upon individuals. He made it clear that "It matters not whether those individuals be officers or whether they are acting upon their own responsibility." We find no evidence whatever that Senator Pool intended that § 241 should not cover violations of Fourteenth Amendment rights, or that it should not include state action or actions by state officials.
http://law2.umkc.edu/faculty/projects/ftrials/price&bowers/sctdecision.html
Now, the act has been restricted by the courts these are covered in Title 18 "Pattern Jury Instructions:
http://birtherthinktank.files.wordpress.com/2012/03/18-u-s-c-241-and-242-pattern-jury-instructions1.pdf
Other restrictions:
Most civil actions against police officers for misconduct are filed under 42 U.S.C. § 1983.[10] However, it is difficult to succeed in § 1983 claims against police officers, and the successes in § 1983 claims do not necessarily result in changes in police practices.[11] Further, judicially imposed barriers limit the value of remedies under § 1983. One barrier is the doctrine of immunity that protects individual police officers from lawsuits.[12] As Robert Louden and Hubert Williams discussed at the Commission’s June 2000 briefing on national police practices and civil rights, defendant officers are usually indemnified by the municipalities or unions if an alleged misconduct is within the line of duty.[13] Therefore, there is no real incentive for police officers to change their practices to ensure that individual rights are protected. In Guardians, the Commission argued that § 1983 claims have not been effective in deterring police misconduct[14] and without much change in police practices, § 1983 continues to be ineffective in deterring police misconduct.
One measure for deterrence of police misconduct is the implementation of overall changes in departmental and agency policy. And one way to bring changes in policy is to impose liability on the department or the agency itself for misconduct of its officers. Monell v. Department of Social Services of the City of New York[15] made it possible for victims of police misconduct to sue police departments and impose liability on the municipalities themselves for the actions of their employees.[16] The Monell Court held that civil rights violations committed by public employees might impose liability on the government if it is shown the violation is the result of poor training or poor supervision.[17] James Fyfe believes that the legal standard first articulated in Monell was a catalyst in changing policing by encouraging police administrations to develop a police standard of care in dealing with the public.[18] He opined that suits against municipalities have resulted in policy changes that have made a great difference in deterring police misconduct.[19] Dr. Fyfe, however, cited two problems with municipal liability. First, many police chiefs see liability as a cost of doing business and the effect of losing a $10- or $12-million lawsuit does not have an impact on police operations.[20] Second, no one in the police department is made aware of the results of the lawsuit, and none of the policy implications of the lawsuits are acted upon.[21]
As articulated by the Monell Court, “municipality cannot be held liable solely because it employs a tortfeaser—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”[22] The presiding judge, therefore, can only impose liability if the municipality caused the injury.[23] The question of a direct causal link between a municipal policy or custom and the alleged misconduct is a difficult inquiry, leaving the U.S. Supreme Court deeply divided.[24] Further, the Court and Congress have not clearly defined what constitutes municipal policy, and this adds to the difficulty in winning claims under § 1983.[25]
Since Monell, the Supreme Court has re-examined the issue of municipal liability in various cases.[26] In each case, the Court distinguished the municipal liability from respondeat superior liability.[27] The Court ensured that municipal liability is based on municipal policy and custom.[28] Further in City of Oklahoma and City of Canton, the Court refused to apply municipal policy doctrine in a single incident of wrongdoing.[29] The Court in City of Oklahoma rejected that one incident of misconduct can amount to inadequate training or supervision amounting to “deliberate indifference.”[30] In City of Canton, the Court limited the definition of “deliberate indifference.”[31] For liability to attach to a municipality, a victim/plaintiff must show that the particular policy or custom of the municipality that caused the injury is so inadequate that it amounts to “deliberate indifference to the rights of persons with whom the police come in contact.”[32] A plaintiff must prove that the municipality made a deliberate or conscious choice not to implement an adequate training program.[33] The Supreme Court has consistently reaffirmed the deliberate indifference standard and stated when a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability: “As we recognized in Monell and [its progeny], Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights.”[34]
The deliberate indifference standard was further defined and narrowed in Brown.[35] In Brown, the plaintiff, Mrs. Brown, sued a Bryan County police officer and the county for alleged use of excessive force and unlawful arrest.[36] Mrs. Brown brought a claim under § 1983 alleging that Bryan County should be held liable for inadequately hiring an officer, Burns, with criminal misdemeanor records and for inadequately training the officer.[37] The Court vacated and remanded the case, stating that the plaintiff failed to show that Bryan County’s decision to hire Burns “reflected a conscious disregard for a high risk that Burns would use excessive force in violation of Brown’s federally protected right.”[38] The Court, relying on City of Canton, ruled that in order for the municipality to be held liable, it must have acted with deliberate indifference to “known or obvious consequences.”[39]
This standard of deliberate indifference defined by the majority in Brown, as the dissenting opinion points out, raises the “plainly obvious” dictum in City of Canton to a new standard.[40] This new standard appears to be higher than criminal recklessness.[41] In Brown, Burns’ records of criminal charges relating to assault and battery, resisting arrest, and public drunkenness, among other charges, were insufficient to prove that Bryan County fully disregarded the substantial risk that Burns would use excessive force when it hired him.[42] Before a municipality can be liable, a plaintiff in a § 1983 claim now must prove that an officer committed a felony or show evidence that the officer had a history of continual use of excessive force.[43]
Problems remain with using municipal liability as a remedy for police misconduct. The burdensome standards imposed by the courts severely limiting the liability of municipalities for the unlawful conduct of their police officers often leave victims with no real remedy.[44] As the Commission in 1995 pointed out in Racial and Ethnic Tensions in American Communities: The Chicago Report, “the need remains to establish a more effective means [for victims] to redress violations of civil rights and a more effective tool in deterring police misconduct.”
cynzke
(1,254 posts)The police officer, Manney, was fired because he violated police department policy. Two previous police checks determined that Hamilton was not a nuisance sleeping on a bench. Along comes Manney, and he decides to roust Hamilton. A fight ensued, then Hamilton got Manney's baton and started battering him with it. Hamilton was fired because he used bad judgment, initiating an incident that didn't need to happen. Manney was not charged with murder because he was within his legal right to use lethal force to protect himself (once Hamilton started bashing Manney with the baton) even though Manney initiated the incident. The law gives Manney that right under "Defense of Life". So I'm not sure how the DOJ is going to prosecute that case. And by the way, I don't like cops who abuse their authority when using excessive force. They should be punished and prosecuted, if they break the law. If they find themselves in a situation (however) where they have to defend themselves, the law allows them (as every citizen) the right of self defense.