5.

Civil Laws Governing Law Enforcement Misconduct

The texts of the three principal statutes that authorize the Department to seek civil remedies for police misconduct are as follows. Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (Police Misconduct Provision): Sec. 210401. CAUSE OF ACTION. UNLAWFUL CONDUCT.—It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. CIVIL ACTION BY ATTORNEY GENERAL.—Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [sic] 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. NOTE: The lack of commas in paragraph (a) is potentially confusing. One incorrect reading of that paragraph resulting from the lack of commas would restrict the scope of the Police Misconduct Provision to persons involved with the juvenile justice system. The clause relating to the juvenile justice system expands the scope of paragraph (a), and does not restrict it. Title VI of the Civil Rights Act of 1964: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. NOTE: The Department's regulations for enforcing Title VI appear at 28 C.F.R. Part 42, Subpart C. Section 809(c) of the Omnibus Crime Control and Safe Streets Act of 1968: (1) No person in any State shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this chapter. (3) Whenever the Attorney General has reason to believe that a State government or unit of local government has engaged in or is engaging in a pattern or practice in violation of the provisions of this section, the Attorney General may bring a civil action in an appropriate United States district court. Such court may grant as relief any temporary restraining order, preliminary or permanent injunction, or other order, as necessary or appropriate to insure the full enjoyment of the rights described in this section, including the suspension, termination, or repayment of such funds made available under this chapter as the court may deem appropriate, or placing any further such funds in escrow pending the outcome of the litigation. 42 U.S.C. 3789d(c)(1) and (3). NOTE: The Department's regulations for enforcing this provision appear at 28 C.F.R. Part 42, Subpart D. The Police Misconduct Provision is enforced through litigation. Title VI is enforced through an initial administrative review, which may lead to litigation if there is a violation and an administrative settlement is not reached. The Safe Streets Act may be enforced either through a similar administrative review/litigation approach or through a strictly litigation mode. These statutes authorize the Department to examine a wide variety of potential misconduct including: unnecessary use of deadly force; excessive force; discriminatory harassment; improper stops, searches, arrests, or failures to provide service based on impermissible criteria such as race, national origin, or gender; coercive sexual conduct; and retaliation against citizens alleging misconduct. Examples of departmental practices that may be actionable because they result in misconduct include: failure to investigate allegations of officer misconduct; failure to discipline officers who have engaged in misconduct; engaging in a code of silence to protect persons guilty of misconduct; and a failure to train personnel in proper law enforcement techniques. The Police Misconduct Provision applies to misconduct that constitutes a "pattern or practice." Title VI does not include this prerequisite, while the Safe Streets Act includes this prerequisite for initiating litigation but not for conducting administrative reviews. Following the Supreme Court's opinion in Teamsters v. United States, 431 U.S. 324 (1977), lower courts have held that the phrase "pattern or practice" is not a term of art, rather, the words reflect their usual meaning in ordinary English. Thus, proof of "single, insignificant, isolated acts ... would not justify a finding of a pattern or practice." Id. at 336, n.16 (quoting remarks of Senator Humphrey, 110 Cong. Rec. 14270 (1964)). The Police Misconduct Provision applies to "governmental authorit[ies]," their agents, and "law enforcement officers," without any limitation. Thus, it appears that the provision applies to all State and local "law enforcement officers" and "governmental authorities," including police departments, state police, and county sheriffs' offices. Whether corrections officers (staff of prisons and jails) are "law enforcement officers" within the scope of the Police Misconduct Provision may depend on the scope of their law enforcement authority under state law. Title VI applies to all law enforcement agencies that receive Federal financial assistance. The 1987 appendix to the Department's Title VI regulations sets forth a nonexhaustive list of the forms of financial assistance provided by the Department; examples include assistance provided by the Office of Justice Programs and asset forfeiture proceeds (grants provided by the Office of Community Oriented Policing Services pursuant to 1994 authorizing legislation also trigger Title VI coverage). The Safe Streets Act covers law enforcement agencies that receive certain monetary assistance, including OJP and COPS office grants. A wide variety of equitable relief is available under these statutes to remedy law enforcement misconduct. Relief may include: (1) a direction that the misconduct cease; (2) officer training; (3) development or revision of systems for investigating citizen complaints and disciplining officers for misconduct; misconduct; (4) implementation of systems, such as an early indication system database to monitor officer behavior and identify potential problem officers; (5) publicity about the misconduct and the remedial measures; (6) reporting on law enforcement activities to the United States, and to the court; and (7) appointment of a special master or monitor. Title VI and the Safe Streets Act provision both date back to the 1960s, and there is extensive experience in applying and interpreting their nondiscrimination provisions (although relatively little with regard to police misconduct issues). Enforcement of the Police Misconduct Provision was enacted in September 1994. Since then, the Department has conducted a variety of investigations into allegations of law enforcement misconduct, and entered into several consent decrees reforming law enforcement agencies. United States v. City of Pittsburgh, CV-97-0534 (W.D. Pa.); United States v. City of Steubenville, CV-C2-97-966 (S.D. Ohio). Although this provision is not discussed in the House, Senate or Conference reports for the Violent Crime Control and Law Enforcement Act of 1994, there is a fairly extensive statement of legislative intent that relates to an earlier version of the provision. H.R. Rep. No. 242, 102d Cong., 1st Sess. 135-139, on the proposed Police Accountability Act of 1991. The Committee cited United States v. City of Philadelphia, 644 F.2d 187 (3rd Cir. 1980), which held that the United States lacked standing to address by civil suit the unconstitutional exercise of police power. The Police Accountability Act, inter alia, redresses the lack of standing. According to the Committee, "The Act creates an enforceable right to be free of patterns of police brutality . . . The Act does not . . . impose any new standards of conduct on police officers . . . . The standards of conduct . . . are the same as those under the Constitution, presently enforced in damage actions under section 1983." Id. at 138. PRACTICE TIP: The Civil Rights Division, at the request of the Attorney General, has established a police misconduct initiative to coordinate enforcement of these civil statutes and to integrate civil enforcement with enforcement of federal criminal laws relating to the deprivation of constitutional or federal statutory rights. The initiative's co-chair for civil enforcement is Steven H. Rosenbaum, Chief, Special Litigation Section, (202) 514-6255. The initiative's co-chair for criminal enforcement is Richard W. Roberts, Chief, Criminal Section, (202) 514-3204. No civil investigation or litigation concerning law enforcement misconduct may be initiated without the approval of the Assistant Attorney General for Civil Rights. Should the United States Attorney's Office receive information (e.g., through a citizen complaint or the news media) of current law enforcement misconduct that may violate one or more of these civil statutes, that information should be forwarded to Mr. Rosenbaum, or to either the Special Litigation Section (Mellie H. Nelson, Deputy Chief, 202-514-6220) or the Coordination and Review Section (Mark A. Posner, 202-307-1388). Questions about how the Department's civil and criminal authority in this area interact should be directed to Mr. Rosenbaum or Mr. Roberts. [updated February 1998] [cited in USAM 8-2.241]