"No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation."
|DEPRIVATION OF RIGHTS UNDER
COLOR OF LAW
"Section 242 of Title 18 makes it a crime for a
person acting under color of any law to willfully
deprive a person of a right or privilege protected by
the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color
of law" include acts not only done by federal, state,
or local officials within the their lawful authority,
but also acts done beyond the bounds of that
official's lawful authority, if the acts are done while
the official is purporting to or pretending to act in
the performance of his/her official duties. Persons
acting under color of law within the meaning of
this statute include police officers, prisons guards
and other law enforcement officials, as well as
judges, care providers in public health facilities,
and others who are acting as public officials. It is
not necessary that the crime be motivated by
animus toward the race, color, religion, sex,
handicap, familial status or national origin of the
The offense is punishable by a range of
imprisonment up to a life term, or the death
penalty, depending upon the circumstances of the
crime, and the resulting injury, if any."
|TITLE 18, U.S.C., SECTION 242
"Whoever, 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, explosives, 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 kidnaping 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."
You've probably already heard praise for the staying
power of our Constitution. That staying power is
evidenced by how little the document has been
amended since the beginning of the Republic. Of
course... why should the Constitution be amended
by the people when judges can interpret the
Constitution for its application to any circumstance.
There's a lot of debate about judges usurping the
powers of the legislative branch of government.
However, the judges get plenty of help from the
United States Congress which provides an endless
supply of legislation upon which judges can
interpret and expand the power of the judicial
branch of government.
Here's some more good news. The chances of your
police career ending in an avalanche of double
jeopardy, unbelievable stress, and financial ruin are
low as long as you act reasonably toward every
situation and circumstance you encounter. Then
again, what is reasonable? Most of the time, your
reasonable actions will carry the day; however, you
must always remember that social and political
circumstances will always be the top determining
factors in assessing your fate when it comes to a
civil rights' prosecution.
Remember Rodney King? When a state court jury
acquitted police officers of charges stemming from a
video tape and allegations of excessive force, riots
in Los Angeles ensued and 57 people died. The
Federal Government promptly charged, tried and
convicted the officers for violating King's civil rights
and sent the police officers off to prison.
The tragic case of Sean Bell, shot and killed by
police officers in New York City, have brought calls
for civil rights prosecution. Again, the officers were
tried in state court and acquitted of all charges.
The defendants in this instance chose trial by judge
over a jury trial. The fact that they were acquitted
by the judge is a good indication that the charges
should not have been brought in the first place. Do
you think that social and political pressures had any
affect on the prosecutors' decision to proceed to
trial? Here's the thing about a trial by judge,
especially involving a case that is politically and
socially explosive, – the judge is going to want to
get it right.
While race has been, and will always be, a primary
factor in civil rights prosecutions, it has almost
become a given that the victim will be African-
American, and the police officers will be white. On
May 7, 2008, I was watching Fox News when Megyn
Kelly, a Fox news reporter and legal analyst, was
reporting the court verdict in the Sean Bell case. At
the end of her report, she stated that Sean Bell was
African-American and "all three police officers are
white." Following the commercial break, Ms. Kelly
corrected her error by correctly stating that two of
the three police officers are African-American.
Megyn Kelly is an accomplished attorney, and her
embarrassment was obvious.
As I write this, the Federal Government is still
considering its options in the Sean Bell case. The
Reverend... Al Sharpton has already made his effort
to stoke the fires of social unrest by organizing a
demonstration and getting himself arrested;
however, that failed to gain legs in the newsrooms
since no riots ensued and no people died. I'll go
out on a limb here and make two predictions: The
three police officers will not be tried for civil rights
violations, and the New York City Police Department
will fire the officers. Of course, the latter prediction
isn't part of the limb...it's a given.
When you become a police officer, you must
understand that your decision to use force must
always, without exception, be justified. Police
officers aren't perfect, and they do, on occasion
violate peoples' civil rights; however, the vast
majority of violations are not intentional and civil
remedies exist to address violations. As long as a
police officer's conduct is not grossly negligent or
criminal, things usually work themselves out.
However, where use of force, and particularly deadly
force, is involved, the aftermath can be devastating
even if the force is justified under circumstances
reasonably perceived at the time.
Here's your dilemma. You're entering a profession
where your use of force is a certainty, and the fact
that you may one day have to use deadly force is a
real possibility. If you're not prepared to accept
this reality, you should not become a police officer.
Here's my humble advice:
1. Only use deadly force to protect your life or the
life of another.
2. Never condone, nor permit, excessive force to
be used in your presence.
3. Establish a reputation for fairness, and your
abiding desire to always do the right thing.
I once posed a constitutional question to a
prosecutor. The prosecutor looked at me and
snapped, "How the hell should I know?" At that
early point in my police career, I couldn't appreciate
the absolute brilliance and accuracy of that
response. As time passed, I would become more
and more aware of how legal speak can change the
meaning of any word or phrase no matter how clear
the original meaning may be. Even Bill Clinton, a
lawyer and past President of the United States,
made the observation, "It depends on what the
meaning of is... is." As silly as that sounds, that's
how lawyers think...and obfuscate.
When you become a police officer, you should be
aware of your exposure to double jeopardy under
civil rights legislation. Okay...okay...I know it's not
real double jeopardy. At least that's what the
judges and lawyers contend. However, if you
should ever be so unfortunate as to be tried
criminally in a state court and acquitted only to be
retried – for the same alleged offense(s), only by a
different name, in a federal court – I doubt that
anyone, or any argument, could ever convince you
that you are not a victim of real double jeopardy.
Here's the good news. Even though this thing that
looks, acts, and produces the same results as
double jeopardy exists, it is used sparingly. In fact,
it's almost exclusively reserved for police officers.
Yes, it applies to some other government officials
including judges. Yes...well, if anyone knows of any
judges tried, acquitted and tried a second time,
send me an e-mail with the details.
"Most of the time, your reasonable actions will
carry the day; however, you must always
remember that social and political
circumstances will always be the top
determining factors in assessing your fate
when it comes to a civil rights' prosecution."
~ Barry M. Baker
|Copyright © 2019 Barry M. Baker