-
-
-
FIFTH AMENDMENT
"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
Summary:

"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
victim.

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.  
Double Jeopardy
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
Double
Jeopardy
Copyright © 2016  Barry M. Baker  
CareerPoliceOfficer.com
-