1. Impersonating a judge/officer
3. Gross negligence
4. Dereliction of Duty,
5. Violation of oath of office,
6.Conspiracy against rights,
7. Intimidation in the exercise and enjoyment of rights under color of
8. Violation of right to due process of law,
9. Violation of right to a jury trial
10. Additional violation of right to due process for refusing to hear a
motion to dismiss, and for refusing to make the accused aware of the CAUSE and NATURE of the CHARGES and PROCEEDINGS against you. And
Some Valuable insight ...
How to File an Effective Complaint Against a Police Officer by Talvin Barnes
"A lot of citizens struggle with writing an effective complaint about a police officer. Often, the writer lets too much emotion enter into the complaint, and it then comes across as more driven by emotion than fact, more unreasonable than objective, or just generally easier for the police agency to minimize or ignore. (Indignation and outrage are good things to communicate, but name-calling should definitely be avoided.) Another common mistake is to draft a statement of the events without making it clear what the actual complaint is! In any case, I wanted to provide a few tips to maximize the impact of a complaint on behalf of the aspiring complainer.
What Do I Mean By "Effective?"Well, effectiveness is a loaded term, and depends somewhat on the intent of your complaint. Fortunately, the same techniques apply whether your goal is merely to have a damning complaint sit permanently in the officer's personnel file (and get noticed by the powers-that-be whenever the officer is up for a promotion), or whether you are seeking more serious disciplinary action and/or termination of the officer or deputy.
DefinitionsA police complaint is formal allegation of misconduct. This should not be confused with a "service complaint," which is a complaint about the service or policies of the agency, but not an allegation of misconduct against a specific employee of that agency. For the purposes of this guide, the "subject officer" is the officer you are complaining about. The "agency" is the police department, sheriff's office, or other law enforcement agency with whom you are filing the complaint.
General guidelines: Effective Police Complaints..
Are written by you! Do not let another police officer write a complaint for you based on your verbal testimony. You must control the specific content of the complaint, or you've probably already failed in your efforts. If you're asked to give your complaint orally to the on-duty supervisor, insist instead on sending a written complaint (certified, with return receipt requested) to Internal Affairs or other disciplina ry authority. Remember that a written submission is much harder for an agency to minimize or bury! Allege serious misconduct by the officer (see some of the possible applicable categories below; be aggressive about asserting the seriousness of the officer's behavior in your complaint!), and contain an explicit request for a formal investigation. Wrap up your complaint with a sentence like: "Officer X has committed numerous, serious violations of departmental policy and the law, and for this reason, and for the safety of the community at large, complainant requests a formal investigation be undertaken immediately." Are timely. Many jurisdictions require that you file your complaint within 60 days for allegations of minor misconduct (e.g., officer was rude), or within 6 months for more serious allegations. If you can't meet these deadlines, you should be able to show good cause as to why your complaint was late. (Note that these deadlines are often waived for allegations of violation of the law.) Clearly allege a pattern of misconduct, if such a pattern exists. This makes it less likely the alleged misconduct will be dismissed as "minor." Have corroborating witnesses whose reports do not conflict with yours! If witnesses exist, you should ask each of them to write a separate account of the incident. It will also help if your witnesses are willing to answer additional follow-up questions the police agency might have. If your complaint cites evidence, the evidence should be produced when the police agency requests it (but make sure you get a receipt!) Referring to evidence without ever turning it over makes a case look weak, and is a red flag for the complaint to be disregarded. Are carbon copied ("cc'd") to a state representa tive or other local politician. This really turns up the heat and makes it harder for the law enforcement agency to bury the complaint without giving it due consideration!
Getting Started..Your first goal is to actually get your hands on a police complaint form. In some jurisdicti ons, this can be a challenge (see external link at the bottom of this page). Essentially, what you need to do is visit the police station or agency where the officer works (although if it's a large organization, you might consider visiting a different branch or office) to pick up a complaint form which you will fill out, and mail in. If you expect a lack of professionalism or outright abuse on the part of the agency (or if you aren't sure what to expect) then you should strongly consider bringing someone with you to the police station as a witness. If you're really concerned, consider having that person keep a small tape recorder in their possession. Having a witness with you makes it far less likely you will be harassed or arrested. Having the tape recorder will help later if the officer at the front desk is abusive and/or refuses to give you a complaint form. Be sure to grab some duplicate forms while you're at the police station, and stick them in a file cabinet at home -- no sense having to come all the way back to the station and fight for another form if you lose the first form, or if the behavior you're complaining about recurs!
The Basics: Categories of Police MisconductMinor misconduct: has minimal adverse impact on the operation or integrity of the agency. Not likely to result in formal disciplinary action (e.g., a lack of courtesy; although rudeness complaints may have a long-term effect on the officer, as described below, rudeness may also fall into the more serious "unnecessary force" category, also described below).General misconduct : violates a policy that requires a fixed penalty (e.g., failure to attend court, failure to attend a scheduled training or qualification, etc.). Generally not relevant to citizen complaints.Serious misconduct: violates policies, procedures, rules, or regulations that have an adverse impact on the operation or integrity of the agency, and which can result in formal disciplinary action (this includes violations of the law). Generally the kind of stuff that you want to allege, if at all possible.Examples of serious misconduct include (names and definitions may vary a bit from jurisdiction to jurisdiction; check your local police agency's Operations Manual (it should be made available to the public online, or at the police agency office):
Aiding another (officer) to violate a rule Altering information on official documents Appropriating property Careless driving resulting in injury or death (note also that many jurisdictions require automatic testing of an officer for alcohol or drug influence after any car accident more severe than a fender bender that may have been caused by that officer; this can be a good thing to request under an FOIA (Freedom of Information Act) request -***link coming soon!***) Compromising a criminal case Departing from the truth (a colorful euphemism for lying; good for alleging in the case of traffic tickets; see also False report) Destruction of reports or records Discrimination (see also Racial or ethnic intimidation, below) Drinking on duty False arrest (not to be confused with the tort of the same name) False report (see also Departing from the truth) Harassment (see also Sexual Harassment) Knowingly making a false report (good for alleging in the case of traffic tickets) Law violation(s), or conspiracy to commit law violation(s) (a.k.a. lack of conformance with the law) Malicious threats or assault Narcotics Overdriving (driving rapidly and/or aggressively) on the way to a minor call (very common in some jurisdictions) Racial or ethnic intimidation Rough and careless handling of departmental equipment Sexual harassment Soliciting or accepting a bribe Unnecessary force (a.k.a. excessive force; this category includes not only unnecessary force or violence in making an arrest or in dealing with a prisoner, but also ridiculing, taunting, humiliatin g, or mentally abusing you)
Filing the ComplaintAs mentioned previously, make sure your complaint alleges at least one specific category of misconduct! (See examples above.) This serves two purposes. First, this makes it irrefutably clear what misconduct you are accusing the officer of, and thus helps to set the stage for your complaint to be appropriately reviewed and investigated. Secondly, and even more importantly, a specific allegation makes it tougher for the departmental employees handling the complaint to clear the officer without any substantial refutation of your allegations, and thus tougher for them to sweep it under the rug. It's easier for an agency to dismiss a raw statement of facts which contains some misconduct buried deep within, than to dismiss a report which specifically names one or more official categories of misconduct. As such, try to pick the best few applicable policy violations and list them in a boldface heading at the top of your complaint. In addition to the serious offenses listed above, other categories of misconduct include:
Abuse of authority Abuse of process Conduct unbecoming a law enforcement officer Lack of courtesy Lack of professionalism Neglect of duty Retaliation (e.g., for a previous complaint you filed!)
There is clearly a lot of overlap between categories, so you should be able to cite plenty of types of misconduct in your report. Don't limit yourself to the items listed here; check your local police department operational manual or procedural handbook for additional categories!
Remember, if the incident about which you are complaining is part of a pattern of behavior by the subject officer(s), be sure to note this in your complaint!
Finally, make sure that you mail the complaint report using Certified Mail, Return Receipt Requested. That way, you'll end up with a postcard that says who at the department signed for your complaint, and the department cannot later allege that they never received it.
ProcedureWhat happens after I file a complaint?First, the intake stage. A sergeant (or higher ranking officer; this person will be known as the "intake officer") will conduct a preliminary review the complaint and determine whether the allegations, if true, would constitute non-minor misconduct. Next, there are several other grounds for dismissal of the complaint besides the misconduct being categorized as minor. For example, a determination that your allegations are intentionally and materially false will lead to your complaint being dismissed. Trivial or frivolous complaints (i.e., those which allege minor technical violations of procedural rules which have negligible adverse effects on the public or the agency's credibility, such as failure by the officer to wear the uniform hat) are also dismissed during intake. Grossly illogical or improbable complaints (e.g., that an officer took control of your mind and made you punch yourself in the face) are also dismissed at this stage. Note that if you have a "history of unfounded complaints" with the agency, you may receive "special handling." This does not mean they can automatically dismiss your complaint, but rather, that they may require you to agree to an interview or other additional procedures.
If your allegations are perceived to be minor by the reviewing officer (or not part of a pattern), your complaint dies before it is ever seriously considered -- this is why it's so important for you to clearly allege and categorize serious misconduct by the officer!
Informal investigationA categorization of minor misconduct by the intake officer will lead to an informal investigation; this is a dead end as far as you are concerned! An informal investigation consists of nothing more than debriefing the subject officer regarding your concerns about the officer.s actions or quality of service. Most importantly, informal investigations do not trigger any formal finding or the imposition of discipline. This is why it's so important to explicitly allege serious misconduct by the officer, and to request a formal investigation in your complaint! If your complaint gets designated for informal investigation, write the department a letter underscoring the severity of your allegations, and demanding that a formal investigation be undertaken.
Formal InvestigationA formal investigation is generally performed by the subject officer's chain of command (his supervisors), or by an Internal Affairs officer (or bureau of officers, in the case of larger, metropolitan police agencies). Depending on your jurisdiction, Internal Affairs involvement may be reserved for allegations of serious misconduct (and the officer's superior is generally required to notify Internal Affairs of any such allegations). During a formal investigat ion, the subject officer and his or her representatives are prohibited from contacting or interviewing any witnesses or conducting any type of investigation into the allegations. As such, you should report any contact or attempts at contacting you by officers who are not specifically authorized to conduct the investigation!
The subject officer is not entitled to any legal representation during the investigation process since it is generally an internal matter and does not involve a court proceeding. During the investigation, officers who are known to have knowledge (either direct or indirect) of the alleged misconduct will be required by the agency to prepare and submit an individual report which is both complete and accurate.
Be forewarned that in a rural Sheriff's Office or other small police agency, "Internal Affairs" may consist of a single officer who is closely acquainted with, or works closely with, the subject officer. This will probably make it harder to get your complaint the attention it deserves, but the techniques in this guide should help you overcome this disadvantage!
Criminal or civil suits against the officerIf criminal charges are expected against the officer, this may affect the scheduling and handling of the investigat ion. This is because in a criminal case, the standard of proof is "beyond a reasonable doubt" (that is, the jury must be roughly 90% certain that the crime occurred). In contrast, in most civil cases or in the handling of police complaints, the standard of proof is a "preponderance of evidence" (that is, roughly 51% certainty that the allegation is true, but this may not be true with some allegations such as False Arrest, which only has to meet an even lower, "probable cause" standard). So, in the case of criminal allegations, the investigating authorities will generally wait to handle complaints after the conclusion of the criminal matter, since the evidence and results of the trial may be definitive and save investigation time (unofficially, it also decreases the odds that the police agency sweeps something under the rug that later becomes embarrassing headline news). Note that if the officer has been charged with a felony by the District Attorney's office, the police agency will generally be forced to indefinitely suspend him or her. The filing a civil suit against the agency may likewise change the dynamic of the complaint procedure, but generally will not halt the agency's investigation.
In the case of very serious allegations (e.g., that the officer used force or deadly force), you should lobby the District Attorney's office to initiate its own investigation. If an affirmative defense exists (e.g., the officer was acting in self defense), or if there is insufficient evidence to convict, the District Attorney will not prosecute the officer.
If the officer is found guilty of criminal charges, there may not be any administrative penalty, since the criminal penalty is believed to be more severe. If the officer is found not guilty in the criminal trial (remember, criminal cases use the "beyond a reasonable doubt" (90%+ certain) standard of proof), he or she could still be found guilty using the "preponderance of evidence" (51%+ certain) standard of proof, and so the investigation of the officer will resume in this case.
In some jurisdictions, an independent monitor from outside the police agency will be appointed whenever criminal charges have been filed against an officer. This independent monitor will often have the discretion to continue the investigation even if the criminal charges are dismissed, and can also recommend that the Internal Affairs department conduct additional investigation into a matter. Therefore, it is definitely worth your while to work with the independent monitor to make sure all relevant evidence is considered.
MediationMediation is a voluntary process for resolving complaints, and it may involve you meeting with other community members, police officers, police administrators, and/or an independent monitor. You have the right to refuse mediation if it is offered. Also, you do not have the right to demand mediation. Whether or not mediation will help achieve your goals definitely depends on the facts of your case, and the professionalism of the agency with which you are dealing. If mediation is offered to you, it is worth tracking down a lawyer or other local insider with knowledge of the mediation process and its likely effect on the results of your complaint.
The outcomeOnce a formal investigation is complete, the department is required to reach an official disposition as to your complaint. Findings in formal investigations use different terminology than criminal cases. Instead of "Guilty" or "Not Guilty," police complaint investigations can result in a variety of outcomes. An "Unfounded" finding is one where the allegation was not found to be based on facts as shown by the investigation; that is, the alleged misconduct is believed not to have occurred by the police agency. An "Exonerated" finding means that the alleged action was found to have occurred, but the investigation revealed that the action was reasonable, lawful, and proper. A "Not Sustained" finding means that insufficient evidence was available to either prove or disprove the allegation (that is, 50% or less of the evidence suggested that the allegation was true). Fi nally, a "Sustained" finding means that the investigat ion disclosed sufficient evidence to determine that the allegation was accurate. You may have noticed that we've got three varieties of "Not Guilty" verdicts here, and only one "Guilty" ; this provides some indication of how much the deck is stacked against the citizen making the complaint, especially when you supposedly only need 51% of the evidence to support your allegation to result in a "Sustained" outcome!
If the subject officer is cleared of wrongdoing, some departments will allow you to appeal the decision within the department. If this option does not exist, or is unsuccessful, you've got several options. The lowest cost course of action would be to complain to your state representative and/or the town or city governing body. Beyond this, your only real recourse for escalating the issue is a civil lawsuit, or pursuing criminal charges against the officer, both of which are beyond the scope of this article.
Short-term implications for the subject officerIdeally, a disciplinary outcome will result from your complaint. In order of increasing severity, this could take the form of an oral reprimand (note that despite its verbal nature, this action will still be documented in writing), a written reprimand, fine, suspension, demotion, or dismissal. Also, depending on the outcome of the investigation, the subject officer may be allowed to remain in his or her usual assignment, allowed to remain on duty but reassigned, or relieved of duty.
In some jurisdictions, "Sustained" complaints with a sufficiently severe penalty are subject to review by a Disciplinary Review Board which includes citizens, and officers who are not directly involved in the case and not in the chain of command directly above the subject officer. In some jurisdictions, officers also have the option to appeal a "Sustained" complaint to a Civil Service Commission or similar municipal authority.
Longer-term implications for the subject officerIn addition to the short term consequences of your complaint (that is, the investigation and resolution described above), your complaint also has a more indirect and longer-term consequence for the subject officer. First of all, even "Not Sustained" complaints stay in the personnel file of the subject officer, and will be reviewed during the officer's annual performance evaluation (all officers up to, and including, the rank of captain must typically undergo this type of yearly review). Past complaints will likewise come up whenever an officer is up for promotion or transfer. If the officer is on probationary status because they are a fairly recent hire, or because of a past disciplinary problem, such complaints will probably be weighed more heavily against the officer.
Secondly, a great many police agencies now use a "declining complaint system" to identify patterns of misconduct, and to weed out retaliatory complaints (that is, complaints which are believed to be filed simply to wreak vengeance on the officer by the citizen). Under the declining complaint system, the agency will not only look at the facts surrounding your complaint, but will use the number of complaints the officer has received in the past quarter year (or longer) to decide whether the officer is receiving an abnormally high number of complaints. If so, the agency is more likely to investigate further instead of ignoring the complaints. Many police agencies also use an "early warning" or "early intervention" system which endeavors to detect early warning signs that indicate incipient patterns of future misconduct.
Both systems review the officer on a quarterly basis to determine whether the officer's statistics are out of line when compared with "similarly situated" officers. Ideally, this means that only officers with the same tenure, shift, and neighborhood are compared, but in the real world such "similarly situated" officers may be unavailable for comparison. An officer's statistics are also normalized to adjust for the number of complaints versus the number of contacts or arrests during the period in question, the number of uses of force versus the number of contacts or arrests, the number of crashed cars, number of rudeness complaints, etc. Small or rural police departments may employ additional statistics due to the decreased number of contacts (e.g., number of sick days taken). If any of these metrics hits a certain threshold, counseling and mentoring are ordered for the officer (or in more serious cases, disciplinary proceedings).
How many complaints does it take to raise a red flag? For a variety of likely reasons, urban police officers typically receive more complaints than their rural counterparts. The "similarly situated" statistics notwithstanding, even five complaints in a quarter would be a very high number, even for an officer who makes a lot of arrests in an urban area. Obviously, a smaller number of complaints would likely raise a red flag in a suburban or rural police department.
What if I verbally antagonized the officer before he broke out the Taser?Officially, the fact that you called the cop a "parasitic ass-clown" as he handed you the speeding ticket (a.k.a. "contempt for the officer"; note that this, and the oft-heard "disrespecting an officer" are not actually illegal) may be "taken into considerat ion" during the investigation, but is not supposed to actually be a mitigating circumstance for the officer. This is quite a nuanced guideline, but you can certainly use that to your advantage by owning up to your outburst in your complaint, and making it clear that this was still no excuse for the officer's subsequent behavior. Likewise, if you begged, "Don't taze me, bro!" beforehand, make that clear in your complaint as well.
What about off-duty officers?You should be aware that off-duty officers in any jurisdiction who are charged with misdemeanors, felonies, or local law violations involving use of force (e.g., assault) or threatened use of force are generally placed under formal investigation if their department is made aware of the violation. If you are involved in an incident with an off-duty officer, never assume that the officer's agency will find out . the only way to be sure is to file a complaint which fully documents the incident. Note also that many departments require off-duty officers, while in uniform, to adhere to the same standards of conduct as if they were on duty!
What if I can't identify the officer?Police agencies must make a good faith effort to identify the officer on your behalf. Unless you're going to sue the agency (and thus will have discovery or subpoena power), you won't have much chance to identify the officer yourself. So, if the agency cannot or will not identify the officer, your best chance is to challenge whether the agency really lived up to its obligations and made a good faith effort; ask them to document what steps they took to identify the officer(s) in question!
What about third party complaints?Third parties can make complaints. However, they must have a "reasonably direct relationship" to the incident if filing a minor complaint. A "reasonably direct relationship" generally means the third party was directly affected by the alleged misconduct (a first-hand source), witnessed the alleged misconduct (a second-hand source), or has special, professional, or organizational knowledge about the alleged misconduct (e.g., based on the party's capacity as a lawyer, judge, etc.) The agency isn't allowed to dismiss less serious third party complaints if there is a reasonable explanation why the "person with standing" (the victim) did not file the complaint (e.g., the victim was a minor, elderly, disabled, deceased, doesn't speak English well, is not a citizen, is wanted on criminal charges, has been threatened, etc.)
Can I complain anonymously?Anonymous complaints are usually dismissed unless they allege corruption or other very serious police misconduct.
RetaliationIf the subject officer or his cronies start giving you a hard time after you file the complaint, file an additional retaliation complaint after each occurrence! That way, each complaint makes the pattern of harassment more obvious, harder to deny, and increases the chances this behavior will stop."
TITLE 18, U.S.C., SECTION 242 DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
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.
This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race. Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.
Title 42, U.S.C., Section 14141 Pattern and Practice
Title 42, U.S.C., Section 14141: makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. This law is commonly referred to as the Police Misconduct Statute. This law gives DOJ the authority to seek civil remedies in cases where it is determined that law enforcement agencies have policies or practices which foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a Pattern and Practice investigation include:
1. Lack of supervision/monitoring of officers' actions. 2. Officers not providing justification or reporting incidents involving the use of force. 3. Lack of, or improper training of officers. 4. A department having a citizen complaint process which treats complainants as adversaries.
Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Types of misconduct covered include, among other things:
1. Excessive Force 2. Discriminatory Harassment 3. False Arrest 4. Coercive Sexual Conduct 5. Unlawful Stops, Searches, or Arrests
Title 18, U.S.C., Section 241 Conspiracy Against Rights
This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same). It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured. Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, 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 may be sentenced to death.
It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. "Color of law" simply means that the person doing the act is using power given to him or her by a governmental agency (local, state or federal). Criminal acts under color of law include acts not only done by local, state, or federal officials within the bounds or limits of their lawful authority, but also acts done beyond the bounds of their lawful authority. Off-duty conduct may also be covered under color of law, if the perpetrator asserted their official status in some manner. Color of law may include public officials who are not law enforcement officers, for example, judges and prosecutors, as well as, in some circumstances, non governmental employees who are asserting state authority, such as private security guards. While the federal authority to investigate color of law type violations extends to any official acting under "color of law", the vast majority of the allegations are against the law enforcement community. The average number of all federal civil rights cases initiated by the FBI from 1997 -2000 was 3513. Of those cases initiated, about 73% were allegations of color of law violations. Within the color of law allegations, about 82% were allegations of abuse of force with violence (59% of the total number of civil rights cases initiated).
Most of the FBI's color of law investigations would fall into five broad areas:
1. excessive force; 2. sexual assaults; 3. false arrest/fabrication of evidence; 4. deprivation of property; and 5. failure to keep from harm.
In making arrests, maintaining order, and defending life, law enforcement officers are allowed to utilize whatever force is "reasonably" necessary. The breath and scope of the use of force is vast. The spectrum begins with the physical presence of the official through the utilization of deadly force. While some types of force used by law enforcement may be violent by their very nature, they may be considered "reasonable," based upon the circumstances. However, violations of federal law occur where it can be shown that the force used was willfully "unreasonable" or "excessive" against individuals.
Sexual assaults by officials acting under "color of law" could happen in a variety of venues. They could occur in court scenarios, jails, and/or traffic stops to name just a few of the settings where an official might use their position of authority to coerce another individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the other if they do not comply.
The Fourth Amendment of the United States Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using his authority provided under the "color of law" is allowed to stop individuals and even if necessary to search them and retain their property under certain circumstances. It is in the abuse of that discretionary power that a violation of a person's civil rights might occur. An unlawful detention or an illegal confiscation of property would be examples of such an abuse of power.
An official would violate the color of law statute by fabricating evidence against or conducting a false arrest of an individual. That person's rights of due process and unreasonable seizure have been violated. In the case of deprivation of property, the official would violate the color of law statute by unlawfully obtaining or maintaining the property of another. In that case, the official has overstepped or misapplied his authority.
The Fourteenth Amendment secures the right to due process and the Eighth Amendment also prohibits the use of cruel and unusual punishment. In an arrest or detention context, these rights would prohibit the use of force amounting to punishment (summary judgment). The idea being that a person accused of a crime is to be allowed the opportunity to have a trial and not be subjected to punishment without having been afforded the opportunity of the legal process.
The public entrusts its law enforcement officials with protecting the community. If it is shown that an official willfully failed to keep an individual from harm that official could be in violation of the color of law statute.
The Supreme Court has had to interpret the United States Constitution to construct law regulating the actions of those in the law enforcement community. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed.
Acting under color of [state] law is misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law Thompson v. Zirkle, 2007 U.S. Dist. LEXIS 77654 (N.D. Ind. Oct. 17, 2007)
“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutiona lity dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)
“An unconstitutional act is not law; it confers no rights; imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as it had never been passed.” Norton v. Shelby County.” 118 U.S. 425
“If the State converts a liberty into a privilege, the citizen can engage in the right with impunity.” Shuttlesworth v. Birmingham, 373 US 262
“No State legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).
“The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 US 137
“No state shall convert a liberty into a privilege, license it, and attach a fee to it.” Murdock v. Penn., 319 US 105
“If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.” Shuttlesworth v. Birmingham, 373 US 262
“Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.” Owen v. Independence, 100 S.C.T. 1398, 445 US 622
“The court is to protect against any encroachment of Constitutionally secured liberties.” Boyd v. U.S., 116 U.S. 616
“State courts, like federal courts, have a “constitutional obligation” to safeguard personal liberties and to uphold federal law.” Stone v. Powell 428 US 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067.
“The obligation of state courts to give full effect to federal law is the same as that of federal courts.” New York v. Eno. 155 US 89, 15 S. Ct. 30, 39 L. Ed. 80.
“An administrative agency may not finally decide the limits of its statutory powers; this is a judicial function.” Social Security Board v. Nierotko. 327 US 358, 66 S. Ct. 637, 162 ALR 1445, 90 L. Ed. 719.
"State Police Power extends only to immediate threats to public safety, health, welfare, etc.," Michigan v. Duke 266 US, 476 Led. At 449: which driving and speeding are not. California v. Farley Ced. Rpt. 89, 20 CA3d 1032 (1971):
"For a crime to exist, there must be an injured party (Corpus Delicti) There can be no sanction or penalty imposed on one because of this Constitutional right." Sherer v. Cullen 481 F. 945:
"If any Tribunal (court) finds absence of proof of jurisdiction over a person and subject matter, the case must be dismissed." Louisville v. Motley 2111 US 149, 29S. CT 42. “The Accuser Bears the Burden of Proof Beyond a Reasonable Doubt”.
Title 42 Penalties For Government Officers
The AUTHORITY FOR FINES (DAMAGES) CAUSED BY CRIMES BY GOVERNMENT OFFICERS.
These Damages were determined by GOVERNMENT itself for the violation listed. Breach Penalty Authority
VIOLATION OF OATH OF OFFICE $250,000.00 18 USC 3571 DENIED PROPER WARRANT(S) $250,000.00 18 USC 3571 DENIED RIGHT OF REASONABLE DEFENSE ARGUMENTS $250,000.00 18 USC 3571 DEFENSE EVIDENCE (RECORDS) $250,000.00 18 USC 357I DENIED RIGHT TO TRUTH IN EVIDENCE $250,000.00 18 USC 3571 SLAVERY (Forced Compliance to contracts not held) $250,000.00 18 USC 3571 DENIED PROVISIONS IN THE CONSTITUTION $250,000.00 18 USC 3571 TREASON (combined above actions). $250,000.00 18 USC 3571 GENOCIDE $1,000,000.00 18 USC 1091 MISPRISION OF FELONY $500.00 18 USC 4 CONSPIRACY $10,000.00 18 USC 241 EXTORTION $5,000.00 18 USC 872 MAIL THREATS $5,000.00 18 USC 876 FRAUD $10,000.00 18 USC 1001 FALSIFICATION OF DOCUMENTS $10,000.00 18 USC 1001 PERJURY $2,000.00 18 USC 1621 SUBORNATION OF PERJURY $2,000.00 18 USC 1622 GRAND THEFT (18 USC 2112) each $250,000.00
To determine multiply no. of counts by damage 18 USC 3571 RACKETEERING (Criminal) $25,000.00 18 USC 1963 RACKETEERING (Civil) Wages Taken $x3 = 5? 18 USC 1964 (Sustained Damages [total] x 3) Thirty-seven (37) Constitutional violations from Count 1: = $9,250,000.00 Damages Dealing with claims of "immunity."
Any claim of " immunity" is a fraud because, if valid, it would prevent removal from office for crimes against the people, which removal is authorized or even mandated under U.S. Constitution Article 2, Section IV; as well as 18 USC 241, 42 USC 1983, 1985, 1986, and other state Constitutions.
Precedents of Law established by COURT cases, which are in violation of law, render violations of law legally unassailable. Such a situation violates several specifically stated intents and purposes of the Constitution set forth in the Preamble; to establish justice, insure domestic tranquility, and secure the-blessings of liberty. This is for JUDGES, or anyone in any branch of government.
SEVEN ELEMENTS OF JURISDICTION
SEVEN ELEMENTS OF JURISDICTION:
1. The accused must be properly identified, identified in such a fashion there is no room for mistaken identity. The individual must be singled out from all others; otherwise, anyone could be subject to arrest and trial without benefit of "wrong party" defense. Almost always, the means of identification is a person's proper name, BUT ANY MEANS OF IDENTIFICATION IS EQUALLY VALID IF SAID MEANS DIFFERENTIATES THE ACCUSED WITHOUT DOUBT. (There is no constitutionally valid requirement you must identify yourself, see 4th Amendment; also see, Brown vs. Texas, 443 US 47 and Kolender v. Lawson 461 US 352.)
2. The statute of offense must be identified by its proper or common name. A number is insufficient. Today, a citizen may stand in jeopardy of criminal sanctions for alleged violation of statutes, regulations, or even low-level bureaucratic orders (example: colorado National Monument Superintendent's Orders regarding an unleashed dog or a dog defecating on a trail). If a number were to be deemed sufficient, government could bring new and different charges at any time by alleging clerical error. For any act to be triable as an offense, it must be declared to be a crime. Charges must negate any exception forming part of the statutory definition of an offense, by affirmative non-applicability. In other words, any charge must affirmatively negate any exception found in the law.
3. The acts of alleged offense must be described in non-prejudicial language and detail so as to enable a person of average intelligence to understand nature of charge (to enable preparation of defense); the actual act or acts constituting the offense complained of. The charge must not be described by parroting the statute; not by the language of same. The naming of the acts of the offense describes a specific offense whereas the verbiage of a statute describes only a general class of offense. Facts must be stated. Conclusions cannot be considered in the determination of probable cause.
4. The accuser must be named. He/she may be an officer or a third party, but some positively identifiable person (human being) must accuse; some certain person must take responsibility for the making of the accusation, not an agency or an institution. This is the only valid means by which a citizen may begin to face his accuser. Also, the injured party (corpus delicti) must make the accusation. Hearsay evidence may not be provided. Anyone else testifying that they heard that another party was injured does not qualify as direct evidence.
5. The accusation must be made under penalty of perjury. If perjury cannot reach the accuser, there is no accusation. Otherwise, anyone may accuse another falsely without risk.
6. To comply with the five elements above, that is for the accusation to be valid, the accused must be accorded due process. Accuser must have complied with law, procedure and form in bringing the charge. This includes court-determined probable cause, summons and notice procedure. If lawful process may be abrogated in placing a citizen in jeopardy, then any means may be utilized to deprive a man of his freedom, and all dissent may be stifled by utilization of defective process.
"The essential elements of due process are notice and an opportunity to defend. “Simon v. Craft, 182 US 427.
"one is not entitled to protection unless he has reasonable cause to apprehend danger from a direct answer. The mere assertion of a privilege does not immunize him; the court must determine whether his refusal is justified, and may require that he is mistaken in his refusal. “Hoffman v. United States, 341 U.S. 479 (1951)
7. The court must be one of competent jurisdiction. To have valid process, the tribunal must be a creature of its constitution, in accord with the law of its creation, i.e., Article III judge. Lacking any of the seven elements or portions thereof, (unless waived, intentionally or unintentionally) all designed to ensure against further prosecution (double jeopardy); it is the defendant's duty to inform the court of facts alleged for determination of sufficiency to support conviction, should one be obtained. Otherwise, there is no lawful notice, and charge must be dismissed for failure to state an offense. Without lawful notice, there is no personal jurisdiction and all proceedings prior to filing of a proper trial document in compliance with the seven elements is void. A lawful act is always legal but many legal acts by government are often unlawful. Most bureaucrats lack elementary knowledge and incentive to comply with the mandates of constitutional due process. They will make mistakes. Numbers beyond count have been convicted without benefit of governmental adherence to these seven elements. Today, informations are being filed and prosecuted by "accepted practice" rather than due process of law.
Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See, “McNutt v. General Motors Acceptance Corp, 298 U.S. 178 (1936). The origins of this doctrine of law may be found in “MAXFIELD v. LEVY, 4 U.S. 330 (1797), 4 U.S. 330 (Dall.) 2 Dall. 381 2 U.S. 381 1 L.Ed. 424
Supreme courts ruled "Without Corpus delicti there can be no crime"“In every prosecution for crime it is necessary to establish the “corpus delecti”, i.e., the body or elements of the crime.” People v. Lopez, 62 Ca.Rptr. 47, 254 C.A.2d 185.
"In every criminal trial, the prosecution must prove the corpus delecti, or the body of the crime itself-i.e., the fact of injury, loss or harm, and the existence of a criminal agency as its cause. " People v. Sapp, 73 P.3d 433, 467 (Cal. 2003) [quoting People v. Alvarez, (2002) 27 Cal.4th 1161, 1168-1169, 119 Cal.Rptr.2d 903, 46 P.3d 372.].
“Elements of “corpus delecti,” injury or loss or harm and a criminal agency which causes such injury, loss or harm, need only be proven by a “reasonable probability,” i.e., by slight or prima facie proof… ” People v. Ramirez, 153 Cal.Rptr. 789, 791, 91 C.A. 132.
““Corpus delecti” of crime consists of fact of injury, loss, or harm, and existence of criminal agency as cause. ” People v. Daly, 10 Cal.Rptr.2d 21, 28, 8 CA4th 47.
“Generally, “corpus delecti” of crime is (1) the fact of the loss or harm, and (2) the existence of a criminal agency as its cause. ” People v. Dorsey, 118 Cal.Rptr. 362, 43 CA3d 953.
"There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. " In re I.M., 23 Cal.Rptr.3d 375, 381 (2005).
"The corpus delecti of a crime consists of two elements[:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause. " People v. Jones, 949 P.2d 890, 902, 70 Cal.Rptr.2d 793, 17 Cal.4th 279.
“The corpus delecti rule requires that the corpus delecti or the body or substance of the crime charged be proved independent from the accused’s extrajudicial confession or admissions. The corpus delecti of a crime consists of two elements: (1) the fact of the injury or loss or harm, and (2) the existence of a criminal agency as its cause. [citing] “People v Jennings, 53 Cal 3d 334, 279 Cal Rptr 780, 807 P2d 1009, 92 CDOS 2576, 91 Daily Journal DAR 4222, reh den. cert den (US) 116 L Ed 2d 464, 112 S Ct 443…People v Pensinger, 52 Cal 3d 1210, 278 Cal Rptr 640, 805 P2d 899, 91 CDOS 1514, 91 Daily Journal DAR 2504, mod 53 Cal 3d 729a, 91 Daily Journal DAR 4745 and stay gr (Cal) 1991 Cal LEXIS 3318 and reh den. cert den (US) 116 L Ed 2d 290, 112 S Ct 351, 91 Daily Journal DAR 12909, reh den (US) 116 L Ed 2d 821, 112 S Ct 923; State v Pullos, 76 Idaho 369, 283 P2d 590; People v Friedland (1st Dist) 202 Ill App 3d 1094, 148 Ill Dec 415, 560 NE2d 1012; Brown v State, 239 Ind 184, 154 NE2d 720, cert den 361 US 936, 4 L Ed 2d 360, 80 S Ct 375; Joseph v State, 236 Ind 529, 141 NE2d 109, 69 ALR2d 824, cert dism 359 US 117, 3 L Ed 2d 673, 79 S Ct 720; People v Aiken, 66 Mich 460, 33 NW 821; People v Gould, 156 Mich App 413, 402 NW2d 27; State v Simler, 350 Mo 646, 167 SW2d 376; State v Hill, 47 NJ 490, 221 A2d 725; State v Robinson (App. Scioto Co) 83 Ohio L Abs 259, 168 NE2d 328; State v Brown, 103 SC 437, 88 SE 21…there must be sufficient proof of both elements of the corpus delecti beyond a reasonable doubt.” 29A American Jurisprudence Second Ed., Evidence § 1476.
“Without standing, there is no actual or justiciable controversy, and courts will not entertain such cases. (3 Witlen, Cal. Procedure (3rd ed. 1985) Actions § 44, pp 70-72.) “Typically, … the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. ” (Allen v. Wright, (1984) 468 U.S. 737, 752…Whether one has standing in a particular case generally revolved around the question whether that person has rights that may suffer some injury, actual or threatened. ” Clifford S. v. Superior Court, 45 Cal.Rptr.2d 333, 335.
"As a general principal, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury. " People v. Superior Court, 126 Cal.Rptr.2d 793.
"Judicial power generally is the power to adjudicate upon the legal rights of persons and property, with reference to transactions or occurrences existing or already had and closed...The judicial function is to 'declare the law and define the rights of the parties under it. “Frasher v. Rader, 124 Cal. 133, 56 P. 797...'A determination of the rights of an individual under the existing laws' is an exercise of judicial power...An essential element of judicial power, distinguishing it from legislative power, is that it requires "the ascertainment of existing rights." People v. Bird, 300 P. 22, 26-27. , there are 2 elements to corpus delcti injury,loss(damage) redress ability of the court.
Under Title 42 U.S. Code Section 1983, the federal civil rights civil statute, individuals may file lawsuits against an offending officer, police department, or jurisdiction.151 Although the federal law, Section 1983, is used most frequently, plaintiffs may also use state-level statutes in bringing abuse lawsuits. The statute mandates that:
Any 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 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.
A Section 1983 lawsuit is a means for bringing civil claim against government officials and government agencies for violations of the U.S. Constitution and other federal laws. It is a type of civil rights lawsuit and is based on an 1871 law known as Section 1983 of Title 42 of United States Code. That law was designed to provide remedies for violations of federally protected rights committed by persons acting by or on behalf of a state governmental entity (also referred to as “under the color of state law”).When Congress passed the original form of the law in 1871, it was intended to counter abuses that were being committed against certain citizens primarily in southern states, where local officials were either unwilling or unable to properly enforce laws.
The U.S. Supreme Court has determined that the “color of law” requirement is met when public officials act under the authority of state law, no matter whether such acts are illegal under state
To be successful with a claim under Section 1983, a plaintiff must establish two things: (1) that the conduct being complained about was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a constitutional right.