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CIVLRGHT.14
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1991-08-28
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August 1991
CIVIL RIGHTS CASES AND POLICE MISCONDUCT
By
John Epke, M.A.
Special Agent
Supervisor, Civil Rights Unit
Criminal Investigative Division
Federal Bureau of Investigation
Washington, DC
and
Linda Davis, J.D.
Chief, Criminal Section
Civil Rights Division
U.S. Department of Justice
Washington, DC
On January 11, 1982, a 24-year-old female was found shot to
death just off an interstate highway near Barstow, California.
A California Highway patrolman reported the discovery of her
body. Based on evidence observed at the crime scene, homicide
investigators from the San Bernardino County Sheriff's Office
concluded that the victim had been stopped either by a law
enforcement officer or someone impersonating an officer.
The homicide investigators decided to examine all duty
weapons of officers who had been in the area around the time of
the shooting. When the officer who had discovered the body was
contacted, he advised that his home had been burglarized and
that his service revolver was missing. A subsequent search
located the service revolver, which was missing its barrel and
cylinder, in his locked pick-up truck. On January 18, 1982,
formal charges were filed in San Bernardino Superior Court,
charging the officer with homicide. Two efforts by the State of
California to prosecute the officer resulted in hung juries.
At the conclusion of the second trial, the FBI initiated a
civil rights investigation of the officer. He was subsequently
indicted by a Federal grand jury, and on May 10, 1984, he was
found guilty for violation of Title 18, U.S. Code, Section 242,
Deprivation of Rights Under Color of Law. The officer was later
sentenced to 90 years in prison, with a minimum of 30 years to
be served before he would be considered for parole.
This particular civil rights case raises many questions.
For example, why was this case, and similar cases, not
immediately investigated by the FBI and prosecuted federally?
Why are some cases of this nature never prosecuted federally?
These questions and others concerning civil rights
investigations will be examined.
This article explains the general steps taken to
investigate the three priority areas of civil rights cases.
However, it places particular attention to the investigation and
prosecution of violations involving police misconduct.
INVESTIGATION OF CIVIL RIGHTS CASES
The two major entities involved in civil rights cases are
the Civil Rights Division (CRD) of the U.S. Department of
Justice (DOJ) and the FBI's Civil Rights Unit (CRU). The Civil
Rights Division's mission within the Department of Justice is to
enforce Federal criminal civil rights statutes and to make
prosecutive decisions about civil rights cases. The FBI's
mission in civil rights is to investigate these cases and to
present them to the Department of Justice for review.
In late 1988, working in concert with the Department of
Justice, the FBI established three civil rights program
priorities--racial violence, misconduct of law enforcement
officers, and involuntary servitude and slavery. While all
three areas are deemed priorities, it should be noted that
approximately 85% of the complaints received and reviewed by DOJ
concern police misconduct allegations.
Civil Rights Complaints
The criminal section of the CRD reviews a large volume of
criminal civil rights complaints received by DOJ each year. In
fact, DOJ records indicate that there are as many as 8,000
complaints and inquiries annually in the form of citizen
correspondence, phone calls, or personal visits to DOJ, the
local U.S. Attorney's Office, or most commonly, to the FBI.
However, only about one-third of these complaints are of
sufficient substance to warrant investigation. These
investigations are conducted by the FBI.
After FBI Agents gather relevant information, they present
the facts for review to a CRD attorney and a local Assistant
U.S. Attorney, who decide either to close the investigation or
to recommend a grand jury presentation. There are at least two
levels of review--first by the Deputy Chief of the Criminal
Section and then by the Section Chief--before any particular
case is approved for grand jury presentation. The Department of
Justice is very selective about the cases it pursues. Of the
approximately 3,000 investigations conducted each year, it
authorizes only about 50 cases for grand jury presentation and
possible indictment.
Grand Jury Presentation
There are several reasons why the Department of Justice
insists on grand jury presentation. Because criminal civil
rights prosecutions are generally so sensitive, it is important
to establish the credibility of each witness under oath. To
test the believability of the alleged victim's allegations
before the grand jury is, thus, important to assess the strength
of the evidence.
In addition, it is much preferred to have members of the
community assess the government's evidence before the accused
stands trial. This provides the Justice Department with a
better understanding of community attitudes that so frequently
play a significant role in the ultimate resolution of such
cases. Indeed, grand jury presentations are not merely
one-sided summaries of the incident at issue. Not only the
victim, but all other significant witnesses, are subpoenaed to
testify. The subject of the investigation is also invited to
appear.
At the conclusion of the grand jury proceedings, the
Justice Department decides whether to request an indictment.
Here again, the Department proceeds with caution. While a
criminal indictment can be returned on a showing of probable
cause, requests for indictments by a grand jury are not made
unless there is sufficient evidence to establish the defendant's
guilt beyond a reasonable doubt.
POLICE MISCONDUCT STATUTE
As mentioned, most of the complaints received and reviewed
by the DOJ's Civil Rights Division and the FBI's Civil Rights
Unit involve allegations of police misconduct, generally
allegations of physical abuse. Title 18, U.S.C., Section 242
makes it a crime for any person acting under color of law,
statute, ordinance, regulation, or custom to willfully deprive
any inhabitant of those rights, privileges, or immunities
secured or protected by the Constitution and laws of the United
States.
Section 242 of Title 18 of the U.S.C. dates from the
post-Civil War era; the rights protected, as amplified by court
decisions in the ensuing years, have been held to include, among
others, the right to be free from unwarranted assaults, to be
free from illegal arrests and illegal searches, and to be free
from deprivation of property without due process of law. This
statute applies to persons regardless of their race, color, or
national origin.
Section 242 can also apply to the misconduct of public
officials other than police officers. For example, prosecutions
of judges, bail bondsmen, public defenders, and even prosecutors
are possible under the statute and have occurred.
Police Misconduct Prosecutive Decisions
Criminal civil rights prosecutions for police misconduct
are among the most difficult under Federal law. Community
biases understandably tend to credit (rather than discredit) the
law enforcement representative. Therefore, the Justice
Department proceeds whenever po