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Double exposure: civil liability and criminal prosecution in federal court for police misconduct.

The law enforcement profession comes with many risks, most of which are knowingly accepted by its members. As in many other occupations, lesser-known, more subtle risks also are inherent in law enforcement. When officers are involved in a physical struggle or violent confrontation, they run the risk of sustaining injury or even death to accomplish their law enforcement mission. They may be called upon to meet force with force, sometimes having to use deadly force An amount of force that is likely to cause either serious bodily injury or death to another person.

Police officers may use deadly force in specific circumstances when they are trying to enforce the law.
. All uses of force by law enforcement are subject to review; none subject to more scrutiny than the use of deadly force. Officers can quickly become familiar with internal review boards, citizen review boards, presentations of cases to local grand juries to determine whether state criminal charges are appropriate, (1) and civil lawsuits brought in state courts by alleged victims against individual officers (or their employing agency) that allege wrongdoing wrong·do·er  
One who does wrong, especially morally or ethically.

 on the part of the officer (or entity). (2) Under federal law, there are two additional and distinct causes of action that officers may find themselves encountering--a civil civil rights lawsuit (3) and a criminal civil rights prosecution. (4) Familiarity with these federal actions will help officers navigate the potential minefield of consequences that may result from one single action.


This article examines these distinct causes of action under federal law; how the two proceed independent from each other, as well as from state legal proceedings All actions that are authorized or sanctioned by law and instituted in a court or a tribunal for the acquisition of rights or the enforcement of remedies.  or internal reviews; and why being the subject of both does not place the officer in double jeopardy double jeopardy: see jeopardy.
double jeopardy

In law, the prosecution of a person for an offense for which he or she already has been prosecuted. In U.S.
. (5) It also traces the evolution of the relevant federal statutes and highlights certain nuances of the laws that sometimes leave officers defending themselves against unexpected and otherwise perplexing per·plex  
tr.v. per·plexed, per·plex·ing, per·plex·es
1. To confuse or trouble with uncertainty or doubt. See Synonyms at puzzle.

2. To make confusedly intricate; complicate.
 federal actions.

The Federal Civil Cause of Action: Title 42 U.S.C. 1983

In 1871, the U.S. Congress passed the Ku Klux Klan Act The Ku Klux Klan Act of 1871 (ch. 22, 17 Stat. 13 [codified as amended at 18 U.S.C.A. § 241, 42 U.S.C.A. §§ 1983, 1985(3), and 1988]), also called the Civil Rights Act of 1871 or the Force Act of 1871, was one of several important Civil Rights Acts passed by Congress during  (now know as the Civil Rights Act of 1871) in an attempt to discourage the corrupt influence of the Ku Klux Klan Ku Klux Klan (k' klŭks klăn), designation mainly given to two distinct secret societies that played a part in American history, although other less important groups have also used  in state government. (6) The passage of the act meant that certain crimes, such as conspiracies to deprive citizens of the right to vote, hold office, serve on juries, and enjoy the equal protection of the laws Noun 1. equal protection of the laws - a right guaranteed by the Fourteenth Amendment to the US Constitution and by the due-process clause of the Fifth Amendment , could be prosecuted at the federal level, rather than in state courts, which were often infected with or at least influenced by Klan members. (7) Additionally, those wronged by these actions also could bring an action at law (a civil lawsuit) against those responsible for the wrong if they were acting under color of state law. The efficacy of the statute in achieving its original goal can certainly be questioned. For various reasons, not the least of which was the extent of the Ku Klux Klan's strength in certain southern states Southern States


government of 11 Southern states that left the Union in 1860. [Am. Hist.: EB, III: 73]


popular name for Southern states in U.S. and for song. [Am. Hist.
, the "statute remained virtually dormant" for the first 90 years after its passage. (8) Beyond challenge, however, is the influence the statute has had on law enforcement officers in this country during the past half century.

In 1961, Title 42 U.S. Code A multivolume publication of the text of statutes enacted by Congress.

Until 1926, the positive law for federal legislation was published in one volume of the Revised Statutes of 1875, and then in each sub-sequent volume of the statutes at large.
 Section 1983 (9) (hereinafter here·in·af·ter  
In a following part of this document, statement, or book.


Formal or law from this point on in this document, matter, or case

Adv. 1.
 [section] 1983) was recognized for the first time by the U.S. Supreme Court as the basis for a civil lawsuit against individual law enforcement officers. Based on the language of the statute, which at the time read "[e]very person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  or other person within the territorial jurisdiction Territorial jurisdiction in United States law refers to a court's power over events and persons within the bounds of a particular geographic territory. If a court does not have territorial jurisdiction over the events or persons within it, then the court cannot bind the defendant  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," (10) James Monroe sued several individual members of the Chicago Police Department The Chicago Police Department, also known as the CPD, is the principal law enforcement agency of Chicago, Illinois, in the United States, under the jurisdiction of the city mayor. , as well as the city of Chicago in its own capacity. In his federal civil lawsuit, Monroe alleged that 13 Chicago police officers broke into his family's apartment, woke him and his wife, and forced them to stand naked in the living room while they ransacked ran·sack  
tr.v. ran·sacked, ran·sack·ing, ran·sacks
1. To search or examine thoroughly.

2. To search carefully for plunder; pillage.
 every room. They then took Monroe to the police station on open charges for 10 hours. Monroe was interrogated about a murder during his confinement but was ultimately released without ever being charged with a crime. The officers had neither a search warrant nor an arrest warrant at the time of the alleged behavior. (11) Monroe and other family members claimed that the officers and the city were liable for violating the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, (12) while acting under color of state law. The defendant officers and city sought dismissal of Monroe's lawsuit, in part based on the grounds that the actions alleged violated not only the U.S. Constitution but the constitution and laws of the state of Illinois also. (13) Both the federal district court and the appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.

An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed.
 entertaining the defense ruled that dismissal of the lawsuit was appropriate. (14) The Supreme Court reversed when it discounted the individual officers' position, recognizing that "[i]t was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand" (15) that led to the passage of the law in 1871. The Court further noted that "[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." (16) As a practical matter, to hold otherwise almost always would preclude a federal suit at the outset because nearly all law enforcement action violative of the U.S. Constitution (or federal laws) also is a violation of one or more state statutes.

While the primary focus of this article is exposure to individual liability facing law enforcement officers, it should be noted that the portion of Monroe's lawsuit against the city of Chicago was dismissed, as the Supreme Court ruled that the city was not subject to suit under the statute. Relying on the intent of Congress in passing the 1871 act, the Supreme Court ruled that it "did not intend to bring municipal corporations within the ambit of 1979." (17) This part of the ruling left individual officers as the only defendants liable to victims of their wrongdoing. In 1978, the Supreme Court reversed this portion of its Monroe decision.


In Monell v. Department of Social Services social services
Noun, pl

welfare services provided by local authorities or a state agency for people with particular social needs

social services nplservicios mpl sociales 
, (18) the Supreme Court changed course and found that an "analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom [section] 1983 applies." (19) While this decision would seem to have created a lucrative option for a plaintiff to sue the proverbial "deep pocket" defendant in lieu of the individuals who actually deprived the plaintiffs of their rights, individuals have remained the most likely liable defendants. Ironically, this is because of another aspect of the Supreme Court's pronouncement in Monell. While recognizing that nonstate government entities could be held liable for constitutional violations where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated prom·ul·gate  
tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates
1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce.

 by that body's officers," (20) the notion that the entity should be vicariously vi·car·i·ous  
1. Felt or undergone as if one were taking part in the experience or feelings of another: read about mountain climbing and experienced vicarious thrills.

 liable whenever one of its officers violates a person's constitutional rights was flatly rejected. Thus, for the government entity to be found liable, it must have somehow caused the constitutional violation to occur with an official policy or regulation, not simply because it employed the individual who violated someone's rights.

An example of this causation requirement is illustrated by the Bryan County, Oklahoma Bryan County is a county located in the U.S. state of Oklahoma. As of 2006, the population was 38,395. Its county seat is Durant. It is also home to the headquarters of the Choctaw Nation. 6. Geography
According to the U.S.
 v. Brown decision. (21) In that case, Bryan County Bryan County is the name of several counties in the United States:
  • Bryan County, Georgia
  • Bryan County, Oklahoma
 avoided liability even though the sheriff's decision to hire the reserve deputy who violated the plaintiff's Fourth Amendment right to be free from an unreasonable seizure was deemed a policy of the county. (22) The Supreme Court made clear that "it is not enough for a [section] 1983 plaintiff merely to identify conduct properly attributable to the municipality MUNICIPALITY. The body of officers, taken collectively, belonging to a city, who are appointed to manage its affairs and defend its interests. . The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability culpability (See: culpable)  and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." (23)

Even though it has proven difficult for plaintiffs to reach the deep pockets of the employing entity defendant, [section] 1983 lawsuits still are often filed at the federal level, as opposed to filing a cause of action in state court, in part due to another feature of federal civil rights legislation. In 1976, Congress passed the Civil Rights Attorney's Fees Award Act, which allows the prevailing parties in [section] 1983 proceedings to receive a reasonable attorney's fee as part of their costs. (24) This recovery of attorney's fees is a lucrative aspect of federal suits not typically afforded litigants in state court.

The Bivens Cause of Action

One hundred years after the Civil Rights Act of 1871 and 10 years after its Monroe v. Pape Monroe v. Pape, 365 U.S. 167 (1961), was a United States Supreme Court case that considered the application of Federal Civil Rights law to constitutional violations by city employees.  decision, the Supreme Court expanded the reach of civil liability for constitutional violations to those who were acting under federal authority when the violation occurred. In its Bivens v. Six Unknown Named Agents Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)[1], was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been  of Federal Bureau of Narcotics The Federal Bureau of Narcotics (or FBN) was an agency of the United States Department of the Treasury. In June, 1930, Harry J. Anslinger was appointed its first commissioner by Secretary of the Treasury Andrew Mellon under President Herbert Hoover.  decision, (25) the Supreme Court created a cause of action that parallels [section] 1983. Like the plaintiff in Monroe, the plaintiff in Bivens claimed that he was subjected to both an unreasonable search and an unreasonable seizure. He sued the six unknown Federal Bureau of Narcotics agents who were involved personally for $15,000 apiece. (26) His suit was filed in federal court. The district court dismissed for, among other reasons, failing to state a cause of action. (27) The federal court of appeals affirmed the dismissal. (28) The Supreme Court reversed and found that a federal cause of action against the federal agents did exist under the Fourth Amendment. While recognizing that "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation," (29) the Court pointed out "that it is ... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." (30) In creating this federal cause of action against federal officials, the Supreme Court rejected the notion raised by the defendants that because Congress had specifically created the [section] 1983 remedy against those acting under state authority, it did "not desire to permit such suits against federal officials." (31) As a result of the Bivens decision, any law enforcement officer, whether acting under color of local, state, or federal law, can be sued in federal court for violating someone's rights granted to them by virtue of federal law or the Constitution of the United States Constitution of the United States, document embodying the fundamental principles upon which the American republic is conducted. Drawn up at the Constitutional Convention in Philadelphia in 1787, the Constitution was signed on Sept. .

The Federal Criminal Violation: Title 18 U.S.C. 242

The criminal companion to Title 42 U.S. Code Section 1983 is Title 18 U.S. Code Section 242 (hereinafter "[section] 242"). In wording extremely similar to that found in [section] 1983, [section] 242 establishes that
  [w]hoever, under color of any law, statute, ordinance, regulation, or
  custom, willfully subjects any person in any State, Territory,
  Commonwealth, Possession, or District to the deprivation of any
  rights, privileges, or immunities secured or protected by the
  Constitution or laws of the United States ... shall be fined under
  this title or imprisoned not more than one year, or both; and if
  bodily injury results from the acts committed in violation of this
  section or if such acts include the use, attempted use, or threatened
  use of a dangerous weapon, explosive, or fire, shall be fined under
  this title or imprisoned not more than ten years, or both; and if
  death results from the acts committed in violation of this section or
  if such acts include kidnapping or an attempt to kidnap, aggravated
  sexual abuse, or an attempt to commit aggravated sexual abuse, or an
  attempt to kill, shall be fined under this title, or imprisoned for
  any term of years or for life, or both, or may be sentenced to
  death. (32)

Like any other criminal statute, but unlike the remedy found in [section] 1983, the punishment imposed upon people who engage in a violation of [section] 242 includes monetary fines or, depending on the nature of the violation, a term of imprisonment Imprisonment
See also Isolation.

Alcatraz Island

former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]

Altmark, the

German prison ship in World War II. [Br. Hist.
 up to life in prison or even a death sentence.


Noticeably absent from the plain language of [section] 242 is any reference to authority given by the state. (33) Clearly, Congress intended for all law enforcement officers (whether they be federal, state, or local) to be criminally culpable Blameworthy; involving the commission of a fault or the breach of a duty imposed by law.

Culpability generally implies that an act performed is wrong but does not involve any evil intent by the wrongdoer.
 for willfully willfully adv. referring to doing something intentionally, purposefully and stubbornly. Examples: "He drove the car willfully into the crowd on the sidewalk." "She willfully left the dangerous substances on the property." (See: willful)  depriving people of constitutional rights. Furthermore, even private citizens are viable defendants in a [section] 242 prosecution if they act in concert with government officials acting under color of law The appearance of a legal right.

The act of a state officer, regardless of whether or not the act is within the limits of his or her authority, is considered an act under color of law if the officer purports to be conducting himself or herself in the course of official
. (34)

A well-documented example of this theory involved a group of 18 defendants who were indicted INDICTED, practice. When a man is accused by a bill of indictment preferred by a grand jury, he is said to be indicted.  following the disappearance of Michael Henry Schwerner, James Earl Chaney, and Andrew Goodman Andrew Goodman (November 23, 1943 – June 21, 1964) was an American civil rights activist who was murdered by gunshot in 1964 by members of the Ku Klux Klan.

Andrew Goodman was born and raised on the Upper West Side of New York City, the middle of three sons of Robert
, three civil rights workers who disappeared in Philadelphia, Mississippi Philadelphia is the county seat of Neshoba CountyGR6, Mississippi, United States. The population was 7,303 at the 2000 census.

Philadelphia is the hometown of Olivia Williams Manning, the mother of current NFL quarterbacks Peyton and Eli Manning.
, on June 21, 1964. As alleged in the federal indictment, Deputy Sheriff Cecil Ray Price of the Neshoba County, Mississippi Neshoba County is a county located in the U.S. state of Mississippi. As of the 2000 census, the population is 28,684. Its county seat is Philadelphia6.

Neshoba is the Choctaw word meaning Gray Wolf.
, Sheriff's Department detained de·tain  
tr.v. de·tained, de·tain·ing, de·tains
1. To keep from proceeding; delay or retard.

2. To keep in custody or temporary confinement:
 the three victims in the Neshoba County jail in Philadelphia on June 21. He was then alleged to have released them, intercepted them later on Highway 19, and removed them from their vehicle and placed them in an official Neshoba County Sheriff's Office vehicle. At this point, he was alleged to have transported the three victims to a remote area where they were turned over to the 18 defendants, "including Deputy Sheriff Price, Sheriff Rainey and Patrolman Willis of the Philadelphia, Mississippi, Police Department." (35) The defendants then allegedly "'did willfully assault, shoot, and kill' each of the three." (36) The 3 law enforcement officials were indicted, along with 15 nonofficial individuals, for conspiring together and also for committing substantive violations of [section] 242. (37) The U.S. District Court for the Southern District of Mississippi dismissed the substantive [section] 242 counts against the nonofficial defendants "because the counts d[id] not charge that the latter were officers in fact, or de facto [Latin, In fact.] In fact, in deed, actually.

This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate.
 in anything allegedly done by them under color of law." (38) The Supreme Court viewed the nonofficial individuals' conduct differently. The Court ruled that "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting under color of law for purposes of the statute," (39) and, therefore, were criminally responsible under [section] 242.

Compounding the long reach of this criminal statute is the notion that the illegal conduct need not be authorized by governmental authority or occur while the violating officer is on duty. As early as 1879, the notion that the illegal act giving rise to the official's prosecution needed to be based on actual authority given him by the government was rejected by the Supreme Court. (40) If the criminal violation were to be interpreted otherwise--requiring the illegal action to be something authorized under government authority--the statute would be virtually useless. Consider, for example, the behavior that led to the prosecution of two law enforcement officials in Catlette v. United States. (41) The prosecution stemmed from the detention of a group of Jehovah's Witnesses Jehovah's Witnesses, Christian group originating in the United States at the end of the 19th cent., organized by Charles Taze Russell, whose doctrine centers on the Second Coming of Christ.  by Nicholas County, West Virginia Nicholas County is a county located in the U.S. state of West Virginia. As of 2000, the population was 26,562. Its county seat is Summersville6. Geography
According to the U.S. Census Bureau, the county has a total area of 1,695 km² (654 mi²).
, Deputy Sheriff Martin Catlette and Richwood, West Virginia Richwood is a city in Nicholas County, West Virginia, United States. The population was 2,477 at the 2000 census. A former coal and lumber boom town, the city's population once flirted with 10,000 but the closure of many underground coal mines caused many of Richwood's residents , Chief of Police Bert Stewart. On June 29, 1941, the group of Jehovah's Witnesses traveled to the Richwood Town Hall to request police protection while carrying out their work as Jehovah's Witnesses. Three individuals from the group were ushered into the mayor's office, which was also utilized by Deputy Sheriff Catlette, and were detained there. A short time into the detention, Deputy Sheriff Catlette removed his badge "and stated in substance and effect, 'What is done from here on will not be done in the name of the law.'" (42) The group was then subjected to blatantly illegal and unconstitutional treatment. (43) After being charged with violating Title 18 U.S. Code Section 52, (44) Catlette urged that the charge was "fatally defective in that it fails to charge the commission of a federal offense, because it does not state that the alleged acts were within the scope of Catlette's authority ...," (45) as evidence by the removal of his badge and accompanying statement before his illegal conduct. The U.S. Fourth Circuit Court of Appeals pointed out the fallacy in Catlette's argument in no uncertain terms. It countered that "it was certainly within the lawful authority of Catlette as a Deputy Sheriff to detain de·tain  
tr.v. de·tained, de·tain·ing, de·tains
1. To keep from proceeding; delay or retard.

2. To keep in custody or temporary confinement:
 a person in his office." (46) In more harsh wording, the appellate panel concluded that "Catlette's argument is, therefore, reduced to nothing more than the notion that an officer can divorce himself from his official capacity merely by removing his badge of office before embarking on a course of illegal conduct, and thereby blithely absolve ab·solve  
tr.v. ab·solved, ab·solv·ing, ab·solves
1. To pronounce clear of guilt or blame.

2. To relieve of a requirement or obligation.

a. To grant a remission of sin to.
 himself from any liability for his ensuing nefarious acts. We must condemn this insidious suggestion that an officer may thus lightly shuffle off his official role. To accept such a legalistic le·gal·ism  
1. Strict, literal adherence to the law or to a particular code, as of religion or morality.

2. A legal word, expression, or rule.
 dualism dualism, any philosophical system that seeks to explain all phenomena in terms of two distinct and irreducible principles. It is opposed to monism and pluralism. In Plato's philosophy there is an ultimate dualism of being and becoming, of ideas and matter.  would gut the constitutional safeguards and render law enforcement a shameful mockery." (47)

Another expansive view of the color of law notion was recognized by the U.S. Fifth Circuit Court of Appeals in 1991 and involved clearly off-duty conduct. In United States v. Tarpley, (48) William Tarpley, a deputy of the Collingsworth County, Texas Collingsworth County is a county located in the U.S. state of Texas. In 2000, its population was 3,206. Collingsworth is named for James Collinsworth, a signer of the Texas Declaration of Independence and first chief justice of the Republic of Texas. , police force, learned of a past affair involving his wife and Kerry Vestal vestal (vĕs`təl), in Roman religion, priestess of Vesta. The vestals were first two, then four, then six in number. While still little girls, they were chosen from prominent Roman families to serve for 30 (originally 5) years, during which . Tarpley and his wife devised a plan to lure her former lover to their residence so that Tarpley could beat and threaten Vestal. When Vestal arrived at the house, "Tarpley immediately tackled Vestal and hit him repeatedly in the head. He also inserted his service pistol A service pistol is any handgun (revolver, or semi-automatic) issued to military personnel, or in some contexts, law enforcement officers.

Prior to the introduction of cartridge-loading firearms, there was little standardisation with regards to the handguns
 in Vestal's mouth. He told Vestal that he was a sergeant on the police department, that he would and should kill Vestal, and that he could get away with it because he was a cop." (49) The scheme also involved two other officers who, along with the Tarpleys, followed Vestal in their patrol cars until Vestal drove out of their town. Tarpley and one of the other officers were convicted of conspiring to and actually "subjecting Vestal to a deprivation of his constitutional rights, in violation of ... [section] 242," (50) which, of course, requires the officers to have been acting under color of law. Tarpley appealed his conviction, arguing that he had not acted under color of law but, rather, that he had acted as a jealous husband. (51) The appellate court affirmed Tarpley's conviction, reasoning that a "rational juror juror n. any person who actually serves on a jury. Lists of potential jurors are chosen from various sources such as registered voters, automobile registration or telephone directories.  could conclude that Tarpley was acting under color of law. Tarpley did more than simply use his service weapon and identify himself as a police officer. At several points during his assault of Vestal, he claimed to have special authority for his actions by virtue of his official status. He claimed that he could kill Vestal because he was an officer of the law. Significantly, Tarpley summoned another police officer from the sheriff's station and identified him as a fellow officer and ally. The men then proceeded to run Vestal out of town in their squad car. The presence of police and the air of official authority pervaded the entire incident." (52) Clearly, without these persuasive factors the outcome would have been different; however, it was no defense for Tarpley to simply argue that his actions were those of a jealous private citizen.


Historically, criminal prosecution for violating [section] 242 most often stems from arrest situations where an inappropriate amount of force is used, rather than from unique situations, such as those detailed above. (53) The constitutional deprivation occurring in the context of an arrest is the right to be free from an unreasonable seizure. (54) Probably the most well-known example of this type of prosecution came about as the result of the videotaped arrest and beating of Rodney King Rodney Glen King (born April 9, 1965 in Fort Worth, Texas) is an African-American taxicab driver who was beaten by Los Angeles Police Department officers (Laurence Powell, Timothy Wind, Theodore Briseno and Sargent Stacey Koon) after being chased for speeding.  in 1991. (55) The individuals involved in the arrest of King who later faced federal prosecution for their actions during the arrest raised several defenses, two of which warrant discussion in the context of this article.

First, Sergeant Stacy Koon argued that he was not guilty of violating [section] 242 merely by being on the scene and not doing more to prevent the unnecessary use of force. (56) The district court judge considering Koon's argument disagreed. Relying on U.S. Ninth Circuit Court of Appeals precedent, the trial judge pointed out "that a police sergeant who stands by and watches while officers under his command use excessive force and refuses to order them to stop may, thereby, subject the victim to the loss of his or her right to be kept free from harm while in official custody or detention." (57) Similar to the absence of vicarious liability The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child,  in its civil counterpart ([section] 1983), to violate [section] 242, a supervisor's actions must be more than passive to satisfy the willful component found in the criminal provision. Applying the proper legal analysis to Sergeant Koon's inaction in the King case, the district court did, in fact, find him guilty. The test was set forth as, "[t]he police sergeant must recognize that the force is excessive and that there are reasonable steps within his power that he could take to prevent the use of force" and "[f]inally, the police sergeant must deliberately or willfully refrain from preventing the excessive force." (58)

The Double Jeopardy Argument

The second defense raised in the federal prosecution of the officers involved in the Rodney King altercation that is relevant to the topic of this article was that, in light of the officers' acquittal The legal and formal certification of the innocence of a person who has been charged with a crime.

Acquittals in fact take place when a jury finds a verdict of not guilty.
 in state court, the federal charges should have constituted double jeopardy. This was determined not to be the case. Four officers involved in the apprehension of King were "tried in state court on charges of assault with a deadly weapon Assault with a Deadly Weapon is the term used to describe the act of threatening to harm one or more people by using a weapon (usually a firearm). Here, assault must be differentiated from battery as they are often confused. Assault is threatening to use force.  and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge ... that resulted in a hung jury." (59) Only after the resulting widespread rioting left more than 40 people dead, more than 2,000 injured, and resulted in nearly $1 billion in property destruction did the United States seek and obtain indictments charging the same officers with violating [section] 242. (60) The officers argued that the federal prosecution constituted double jeopardy. (61) The Ninth Circuit Court of Appeals disagreed based on the doctrine of dual sovereignty, which, simply stated, excludes from the double jeopardy prohibition prosecutions brought by separate sovereigns. Clearly, the state of California and the United States government constitute separate sovereigns. (62) The officers argued, however, that their prosecution satisfied a narrow exception to the dual sovereignty doctrine. According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the appellate panel considering their argument, the so-called Bartkus (63) exception is satisfied when "the second prosecution, otherwise permissible under the dual sovereignty rule, is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute." (64) If that standard is proven, the second prosecution, although brought by the second sovereign, is barred based on double jeopardy. The officers in the instant case did not carry the burden. The fact that the state and federal investigators and prosecutors cooperated with each other did not turn the federal prosecution into a mere sham. (65)

For an even more obvious reason, there is no exposure to double jeopardy if an officer is sued civilly based on [section] 1983 and prosecuted under [section] 242 for the same action. Simply put, the Double Jeopardy Clause applies only to criminal cases. (66)


All actions carry certain consequences. Some are realized immediately, some may take years to materialize. The law enforcement profession is fraught with dangerous consequences. Awareness is always taught--awareness of surroundings and danger signs, for example. Awareness of the potential legal consequences of actions also is useful. This article has discussed federal civil actions against law enforcement officers and federal criminal prosecution of those same law enforcement officers. Having an awareness of the legal bases for these consequences can make being the subject of one, or both, much less stressful for the officers.



(1) For example, a Prince George's County, Maryland
Not to be confused with Prince George County, Virginia.

Prince George's County is located in the U.S. state of Maryland located immediately north, east, and south of Washington, D.C.
, police officer was indicted for two counts of vehicular manslaughter vehicular manslaughter n. the crime of causing the death of a human being due to illegal driving of an automobile, including gross negligence, drunk driving, reckless driving, or speeding.  stemming from an accident he caused while engaged in a pursuit of a motorcyclist during rush-hour traffic. Megan Greenwell, "Md. Officer Indicted in Crash That Killed Two," The Washington Post, February 14, 2008, p. B1.

(2) For example, in February 2008, a Prince George's County, Maryland, civil jury found a county police officer liable for assault and battery. The jury awarded the man the officer shot and wounded on January 1, 2006, a total of $2.4 million. This result followed an internal police investigation reviewed by the U.S. Department of Justice, which found the officer acted appropriately. Ruben Castaneda, "Man Who Was Shot by Officer Wins $2.4 Million Judgment," The Washington Post, March 1, 2008, p. B2.

(3) 42 U.S.C. [section] 1983.

(4) 18 U.S.C. [section] 242.

(5) U.S. Const. Amend. V, in pertinent part, states "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb The phrase within the Fifth Amendment to the U.S. Constitution, commonly known as the Double Jeopardy Clause, that provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," pursuant to which there can be no ."

(6) Randy Means, "The History and Dynamics of Section 1983," The Police Chief, May 2004.

(7) Eric A. Harrington, "Judicial Misuse of History and [section] 1983: Toward a Purpose-Based Approach," Texas Law Review, March 2007.

(8) Supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 6.

(9) The section of the original Ku Klux Klan Act that allowed for civil lawsuits to redress a constitutional violation later became, and remains, Title 42 U.S.C. [section] 1983.

(10) Monroe v. Pape, 365 U.S. 167 (1961). It should be noted that the statute has remained virtually unchanged, with the notable exception that a person acting under authority derived from the District of Columbia District of Columbia, federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States).  is now included in its reach. The current version of Title 42 U.S. Code [section] 1983 reads, "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 territorial 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 injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction.  shall not be granted unless a declaratory DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86.  decree was violated or declaratory relief declaratory relief n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed) for information in a lawsuit over a contract.  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 GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., A. D., 1278; so called, because it was passed at Gloucester. There were other statutes made at Gloucester, which do not bear this name. See stat. 2 Rich. II.

 the District of Columbia." Emphasis added to changes made after the Monroe decision.

(11) Id. at 203 (Frankfurter, J., dissenting).

(12) U.S. Const. Amend. IV reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit. , supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

(13) Supra note 10, at 172. Illinois Const., Art. II, sect. 6 at the time was almost identical to U.S. Const. Amend. IV; the actions also constituted a violation of Ill. Rev. Stat., c. 38, sects. 252, 449.1, and Chicago, Illinois, Municipal Code, sect. 11-40.

(14) 272 F.2d 365 (7th Cir. 1959).

(15) Supra note 10, at 174.

(16) Id. at 183.

(17) Id. at 187.

(18) 436 U.S. 658 (1978).

(19) Id. at 690 (emphasis in original). In a footnote in its opinion, the Court made clear that, because of the plain language of the Eleventh Amendment The Eleventh Amendment to the U.S. Constitution reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or Equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
, the Monell decision was "limited to local government units which are not considered part of the State." FN 54. U.S. Const. Amend. XI reads, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State."

(20) 436 U.S. at 690.

(21) 520 U.S. 397 (1997).

(22) Id. at 404.

(23) Id. (emphasis in original).

(24) 42 U.S.C. [section] 1988 (b).

(25) 403 U.S. 388 (1971).

(26) Id. at 389.

(27) 276 F.Supp. 12 (E.D.N.Y. 1967).

(28) 409 F.2d 718 (2nd Cir. 1969).

(29) Supra note 25, at 396.

(30) Id., quoting Bell v. Hood, 327 U.S. 678, 684 (1946) (footnote omitted).

(31) Bivens, 403 U.S. at 429 (Appendix to opinion of Burger, C.J., dissenting).

(32) 18 U.S.C. [section] 242.

(33) Cf. 42 U.S.C. [section] 1983.

(34) While this article examines the features of the Color of Law statute found at 18 U.S.C. [section] 242, it should be noted that there is a separate Conspiracy statute (18 U.S.C. [section] 241) that makes it a federal crime for two or more persons to conspire con·spire  
v. con·spired, con·spir·ing, con·spires

1. To plan together secretly to commit an illegal or wrongful act or accomplish a legal purpose through illegal action.

 to injure, oppress op·press  
tr.v. op·pressed, op·press·ing, op·press·es
1. To keep down by severe and unjust use of force or authority: a people who were oppressed by tyranny.

, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States or because of his having so exercised the same, which does not require the conspirators CONSPIRATORS. Persons guilty of a conspiracy. See 3 Bl. Com. 126-71 Wils. Rep. 210-11. See Conspiracy.  to have been acting under color of law.

(35) United States v. Price United States v. Cecil Price, et al. 383 U.S. 787 (1966), also known as the Mississippi Burning trial, was arguably one of the most famous criminal trials in American history. , et al., 383 U.S. 787, 790 (1966).

(36) Id.

(37) Id. at 792-794.

(38) Id. at 793.

(39) Id. at 794.

(40) Ex parte [Latin, On one side only.] Done by, for, or on the application of one party alone.

An ex parte judicial proceeding is conducted for the benefit of only one party.
 Commonwealth of Virginia, 100 U.S. 339 (1879).

(41) 132 F.2d 902 (4th Cir. 1943).

(42) Id. at 904.

(43) Id., describing the actual treatment and unlawful acts.

(44) The defendants were charged with violating Title 18 U.S.C. [section] 52, which later became [section] 242.

(45) Supra note 41, at 905.

(46) Id. at 906.

(47) Id.

(48) 945 F.2d 806, reh'g. denied (5th Cir. 1991), cert. denied, 504 U.S. 917 (1992).

(49) Id. at 807.

(50) Id. at 808.

(51) Id. at 809.

(52) Id.

(53) The FBI's Web site points out that most color of law cases fall into five categories: excessive force, sexual assaults, false arrest and fabrication fabrication (fab´rikā´shn),
n the construction or making of a restoration.
 of evidence, deprivation of property, and failure to keep from harm; retrieved from From 2001 through 2007, the Criminal Section of the Department of Justice obtained convictions of 391 defendants in color of law cases; 256 defendants were convicted between 1994 through 2000. January 30, 2008 press release; retrieved from

(54) Supra note 12.

(55) Because of the familiarity with the Rodney King incident that most law enforcement officers have, the facts giving rise to the subsequent court proceedings will not be recounted in this article. For a full discussion of the underlying events, see United States v. Koon, 833 F.Supp. 769 (C.D. Calif. 1993).

(56) It should be noted that the court opinion referenced in supra note 55 recognizes that initially the conduct of the arresting officers and the amount of force used on King in effecting his arrest was reasonable and, therefore, not in violation of King's constitutional rights. The force became excessive at a certain point, and Sergeant Koon was present both before and after the point when it became excessive.

(57) United States v. Koon, 833 F.Supp. 769, 779, (C.D. Calif. 1993), aff'd in part, vacated in part, 34 F.3d 1416 (9th Cir. 1994), aff'd in part, rev'd in part and remanded, 518 U.S. 81 (1996), quoting United States v. Reese, 2 F.3d 870, 889 (9th Cir. 1993).

(58) Id. at 779, quoting Reese at 890, (emphasis added).

(59) Koon v. United States, 518 U.S. 81, 87(1996).

(60) Id. at 88.

(61) Supra note 5.

(62) United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), aff'd in part, rev'd in part and remanded, 518 U.S. 81 (1996); Heath v. Alabama, 474 U.S 82, 93 (1985).

(63) Bartkus v. Illinois, 359 U.S. 121 (1959).

(64) Supra note 62, 1439.

(65) Id. In footnote 19, the 9th Circuit panel pointed out that the Bartkus exception is narrow and seldom successfully pursued.

(66) Kermit L. Hall, James Hall, James, 1811–98, American geologist and paleontologist, b. Hingham, Mass., grad. Rensselaer School (later Rensselaer Polytechnic Institute), 1832.  W. Ely, Joel B. Grossman, and William M. Wiecek, eds., The Oxford Companion to the Supreme Court of the United States Supreme Court of the United States

Final court of appeal in the U.S. judicial system and final interpreter of the Constitution of the United States. The Supreme Court was created by the Constitutional Convention of 1787 as the head of a federal court system, though it was
 (New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
, NY: Oxford University Press, Inc., 1992), 232.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.


Special Agent Schott is a legal instructor at the FBI Academy The FBI Academy, located in Quantico, Virginia, is the training grounds for new Special Agents of the United States Federal Bureau of Investigation. It was first opened for use in 1972 on 385 acres (1.6 km²) of woodland. .

Side-by-Side Comparison of the Federal Statutes

Civil ([section] 1983)  Criminal ([section] 242)

Who                     Whoever
Color of Law            Color of Law
Deprives                Willfully Deprives
Constitutional Right    Constitutional Right

$$ Damages              Prison/Fine
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Title Annotation:Legal Digest
Author:Schott, Richard G.
Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:May 1, 2008
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