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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 possible against police misconduct
that is clearly offensive and unmistakably violates the rights
of the individual victim. Thus, on occasion, after a full and
complete grand jury presentation, the Department has decided not
to present any indictment to the grand jury.
Prosecutive decisions are also strongly influenced by how
local authorities have responded to the alleged misconduct of
the subject officers. Local actions can include administrative
proceedings by the law enforcement agency, as well as State
prosecutions. The Justice Department often monitors the local
response before deciding on a final course of action. What
might fall short of "adequate" local action will depend,
obviously, on the facts of each particular case. To illustrate,
a suspension of a few days for a brutal beating could well be
considered insufficient to vindicate the Federal interest under
the criminal civil rights laws.
At the other extreme, where it appears that the local law
enforcement agency is moving quickly and decisively to punish
misconduct, the Justice Department generally defers to that
process and does not seek to impose duplicate Federal measures.
Experience teaches that swift and commensurate discipline,
imposed on aberrant police officers by their supervisors, is
generally a more effective deterrent to misconduct than Federal
prosecution.
Misconduct Case Factors
In addition to considering the local administrative and
prosecutive response to a particular allegation of misconduct,
great weight is attached to the willfulness of the misconduct.
The Supreme Court has ruled that in any prosecution under Title
18, U.S.C., Section 242, the Government must prove the
defendant's specific intent to engage in misconduct that
violates the victim's constitutional rights; thus, the
willfulness of the officer's action is critically important in
such cases.
When the misconduct is deliberate and willful--for example,
a suspect is beaten to coerce a confession, or an arrestee who
initially resisted police efforts to be apprehended is
subsequently beaten in retaliation--the Justice Department will
not hesitate to prosecute. Another factor that can influence a
decision to prosecute is the severity of injuries.
Finally, prosecutorial decisions are necessarily guided by
the evidentiary strength of the case. The extent of
independent corroboration significantly influences the victim's
claim. The department does not undertake to prosecute police
officers on the strength of the victim's statement alone.
Corroboration may consist of physical evidence, but more likely
than not, witnesses provide corroboration by their testimony.
However, the testimony of all witnesses is not equal, and the
Department places greater weight on corroboration provided by
the testimony of a fellow officer than on testimony provided by
the victim's mother or friends.
False Misconduct Charges
An issue frequently raised in police misconduct cases is
the past inability to prosecute persons who make false
complaints to the FBI. Until a few years ago, such prosecutions
were extremely difficult from a legal standpoint, because there
was conflict in the Federal Circuit Courts of Appeals as to
whether Section 1001 of Title 18 applied to false statements
made to FBI Agents. In United States v. Rodgers, decided on
April 30, 1984, the Supreme Court held that Title 18, U.S.C.,
Section 1001 does cover false statements to FBI Agents, thus
paving the way to prosecute such statements.
There is, however, difficulty in prosecuting these
cases--they are hard to prove beyond a reasonable doubt.
Frequently, the evidence in these cases constitutes a
disagreement between the declarant and the FBI Agent taking the
statement, with the declarant insisting the false statement was
not made, or if made, was the result of having been
misunderstood by the Agent. Nonetheless, where compelling
corroboration exists that a false statement was intentionally
made, criminal prosecution has been authorized by the Department
of Justice.
One such case was tried in 1986 in the Western District of
Louisiana. A jail inmate was convicted of a Section 1001
violation when he falsely reported to the FBI that he had been
assaulted and kicked by a deputy sheriff, when in fact, he had
received his injuries during a fight with another inmate. In
this case, there was clear and convincing evidence that his
report to the FBI was false, and accordingly, authorization for
the Section 1001 prosecution was provided. He was convicted and
sentenced to 3 years' additional imprisonment. Because of the
difficulty and sensitivity of these prosecutions, the Department
of Justice's Civil Rights Division must review and authorize each
prosecution.
SUMMARY
As seen in this review of investigative and prosecutive
steps, civil rights cases are taken seriously. Throughout its
56 field divisions, the FBI has a total of 117 Agents dedicated
to investigating civil rights complaints. Moreover, a
complement of 27 Department of Justice attorneys prosecute such
civil rights cases. Despite the minimal amount of investigative
and prosecutorial resources used in these investigations, a
steady increase in civil rights convictions has occurred in the
last 3 years. In 1987, 69 convictions were obtained; in 1988,
101 convictions; and in 1989, 128 convictions.
While the statistical accomplishments appear to be low when
compared to the number of cases opened, as discussed earlier,
the aggressive investigation and prosecution of civil rights
matters is absolutely necessary, regardless of cost. Residents
of the United States must have access to competent Federal
investigative and prosecutive agencies to redress U.S.
Constitutional grievances when local mechanisms do not provide
adequate relief. The obligations of the FBI and DOJ in this
regard cannot be ignored or delegated if public confidence in
this Nation's system of government by law is to be maintained.
Emerging from this aggressive presence is a deterrent
factor far more effective than merely discouraging individual
violators. While deterrence is admittedly very difficult to
measure, a strong Federal presence provides the proper impetus
for local and State agencies and courts to address civil rights
complaints effectively. It encourages these agencies to
maintain an institutional environment in which civil rights
violations are not tolerated. Law enforcement agencies must
remain committed to the vigorous upholding of the Federal civil
rights statutes and remain proud of the responsibility of
ensuring the constitutional rights of all people in the United
States.