MDPD Legal Guideline " Civil Rights"

8/17/2019 MDPD Legal Guideline " Civil Rights"

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LEGAL GUIDELINES CIVIL RIGHTS-FEDERAL LAW

document the incident on the appropriatereport.

It is recommended that ofcers contacttheir agency legal advisor when presented witha child custody order from a foreign country orwith court orders from different jurisdictions

which are in apparent conict with each other. Also, it is important that ofcers closely review§§ 787.03-787.04 prior to making an arrestpursuant to either section because both containknowledge and intent as elements of the crime.There are exemptions from prosecution underthese laws, some of which are briey noted inthe paragraphs above.

CIVIL RIGHTS-FEDERAL LAW

POLICE LIABILITY UNDER FEDERAL L AW

GeneralWhenever any individual interferes

with another’s rights there is a possibility ofcivil or criminal sanctions. The nature andextent of the protection that either the Stateor Federal governments give to an individu-al’s rights is determined by statute and case

law of the particular jurisdiction.The Federal law in this area has been

termed “the Civil Rights Acts” but is actual-ly divided into two areas, civil and criminal,each with its own unique denitions.

CIVIL A CTION FOR DEPRIVATION OF RIGHTS

Section 1983 of Title 42, U.S. Code“Every person who, under color of any

statute, ordinance, regulation, custom, orusage, of any State or Territory, or the Dis-trict of Columbia, subjects, or causes to besubjected, any citizen of the United States orother person within the jurisdiction thereofto the deprivation of any rights, privileges,or immunities secured by the Constitutionand laws, shall be liable to the party injuredin an action at law, suit in equity, or otherproper proceeding for redress.”

A plaintiff who can prove actual dam-

ages in a Section 1983 suit is entitled to re-cover such damages from a defendant whodeprived him or her of his or her civil rights.

“The only elements which need to bepresent in order to establish a claim fordamages under the Civil Rights Act arethat the conduct complained of was engaged

in under color of state law, and that suchconduct subjected the plaintiff to the depri-vation of rights, privileges, or immunitiessecured by the Constitution of the UnitedStates.” Marshall v. Sawyer, 301 F.2d 639(9th Cir. 1962).

If you act in your ofcial capacity youare acting under color of state (or local) law,and if your conduct results in the depriva-tion of any constitutionally guaranteedrights, you could be liable not only for ac-tual damages, but for punitive damages ifthe element of malice is shown. Not only areimproper acts committed under the color oflaw actionable, but also any act pursuant tolocal custom or usage that deprives a personof their federal constitutional rights.

You are not liable for those acts whichare purely ministerial in nature, such as theserving of warrants (search or arrest) pur-suant to a court order unless you exceededyour authority. If you arrest without prob-able cause, you could be liable. However,you will not be held liable for enforcing anylaw that is later declared unconstitutional.Even if the complainant was convicted instate court in connection with a transgres-sion (e.g., resisting arrest, burglary, or any

crime incidental), this is not an availabledefense which shields you from liability; de-fenses available are a matter of Federal lawand policy. States cannot create defenses tothe Federal Civil Rights Act. Good faith andprobable cause are defenses under a chargeof false arrest brought under § 1983 andprevalent tort law.

The act complained of need not havebeen willfully committed for liability to at-tach, nor is it necessary to prove specicintent to deprive the plaintiff of a federalright.

All causes of action arising out of § 1983must be for those acts committed by the of-cer under color of law, regulation, custom,or usage.

CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS –DEPRIVING PERSONS OF

RIGHTS OR PRIVILEGES

Section 1985 of Title 42, USC(3) “If two or more persons in any State

or Territory conspire…for the purpose ofdepriving, either directly or indirectly, anyperson or class of persons of the equal pro-tection of the laws, or of equal privileges


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CIVIL RIGHTS-FEDERAL LAW LEGAL GUIDELINES

and immunities under the laws...in anycase of conspiracy set forth in this section,if one or more persons engaged therein do,or cause to be done, any act in furtheranceof the object of such conspiracy, whereby an-other is injured in his person or property, or

deprived of having and exercising any rightor privilege of a citizen of the United States,the party so injured or deprived may havean action for the recovery of damages, occa-sioned by such injury or deprivation, againstany one or more of the conspirators.”

This sanction deals with conspiracies tointerfere with constitutionally guaranteedrights. It differs from § 1983 in that it sanc-tions conspiracies of either public ofcialsor private persons. Conspiracy necessarily

involves two or more persons and a success-ful completion of the conspiracy is not es-sential, but rather an overt act in further-ance of the conspiracy injuring a person ordepriving him or her of property or the ex-ercise of any rights or privileges of a citizenof the United States is compensable. Theremust also be an intentional or purposefuldesign to deprive the citizen of any of his orher secured rights.

CRIMINAL LIABILITY

Section 242 of Title 18, USC“Whoever, under color of any law,

statute, ordinance, regulation, or custom,willfully subjects any person in any State,Territory, Commonwealth, Possession, orDistrict to the deprivation of any rights,privileges, or immunities secured or pro-tected by the Constitution or laws of theUnited States, or to different punishments,

pains, or penalties, on account of such per-son being an alien, or by reason of his color,or race, than are prescribed for the punish-ment of citizens, shall be ned under thistitle or imprisoned not more than one year,or both; and if bodily injury results from theacts committed in violation of this sectionor if such acts include the use, attempteduse, or threatened use of a dangerous weap-on, explosives, or re, shall be ned underthis title or imprisoned not more than ten

years, or both; and if death results from theacts committed in violation of this sectionor if such acts include kidnapping or an at-tempt to kidnap, aggravated sexual abuse,or an attempt to commit aggravated sexualabuse, or an attempt to kill, shall be ned

under this title, or imprisoned for any termof years or for life, or both, or may be sen-tenced to death.”

The Civil Rights Act of 1871 is civilin nature and the remedies include moneydamages (nominal, compensatory, and pu-

nitive), injunctions and declaratory judg-ments. Title 18 deals with criminal sanc-tions for some of these same types of illegalactivities, and the courts read this section inconjunction with civil sanctions.

There are two ways you can be liablewhen your actions deprive a person of a right,privilege, or immunity protected by the Con-stitution or laws of the United States:

(1) If your actions are willful, i.e.,you intentionally deprive somebody of his

rights; or(2) By willfully subjecting any person to

a different punishment or penalty becausesuch person is an alien, or because of theirrace or color, other than is prescribed for thepunishment of citizens.

A violation of § 242 may subject the of-fender to a sentence of death, imprisonment,a ne, or both imprisonment and a ne.

Examples of actionable deprivationsunder (1) above:

(a) Arrest made without probable causeor an arrest warrant.

(b) Illegal search and seizure.(c) Unlawful assault or battery.(d) Wrongful homicides.In all of the above actions there must

be an element of willfulness on the part ofthe ofcer, but the fact that the defendantofcer may not have been thinking in consti-tutional terms is not material where his aimwas not to enforce local law, but to deprivea citizen of a right and that right was pro-tected by the Constitution.

Section 241 pertains to police ofcersacting under color of law, as well as to pri-vate citizens, but it differs from § 242 in twomajor respects. First, § 241 is applicable onlyto a conspiracy involving two or more per-sons. Secondly, § 241 pertains only to citizensof the United States, whereas § 242 pertainsto any person within federal jurisdiction.

A violation of § 241 is a felony whichmay subject the offender to a sentence ofdeath, imprisonment, a ne, or both impris-onment and a ne.

The county may assume responsibilityfor compensatory damages, but it is highlyunlikely that any local government would


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LEGAL GUIDELINES COURT PROCEDURES

be authorized to pay any part of a judgmentor claim which is punitive.

COURT ORDERS

Recently ofcers in the eld have beenpresented with legal documents upon arriv-al at the scenes of landlord/tenant or childcustody disputes. Ofcers have been askedto take enforcement action with respect tothese documents. These documents are usu-ally agreements drawn up between a land-lord and tenant to delineate their rentalagreement or between parents delineatingtheir custodial rights. Such documents are

not court orders. They are civil agree-ments which cannot be enforced by po-lice ofcers.

Ofcers are reminded that they can onlyenforce court orders that have been prop-erly executed by Florida courts. However,this does not apply to injunctions for protec-tion from domestic violence. Domestic vio-lence injunctions issued by a foreign statemust be accorded full faith and credit by thecourts of this State as is required by federal

law. See Section 741.315(2), Fla. Stat. Additionally, ofcers are reminded that

even when presented with a valid Floridacourt order for child custody matters, the or-der must contain “break order” language and/or other language specically authorizing lawenforcement ofcers to take particular actionwith respect to the matter. Typically, sample“break order” language may read as follows:“Law enforcement ofcers are authorized touse all necessary force to include breakingand entering the residence located at [spe-cic address is necessary here] to remove theminor child and deliver said minor [minor’sname stated here] to the custody of the Pe-titioner.” Additional information regardingbreak orders can be found in this index underthe topic of “Child Custody Disputes.”

COURT PROCEDURESCOMPLAINTS –MISDEMEANORS

How a Citizen Can File a MisdemeanorComplaint

The complainant must appear in personat one of the ofces of the State Attorney

and be prepared to give a statement andsign a complaint under oath. If a police re-port was made, the report number should begiven to the person taking the complaint atthe State Attorney’s Ofce at the time thatthe complaint is made.

DEPOSITIONS

GeneralDepartment members should realize

that when the department and/or individ-ual members are being sued, our attorneysmust depose the ofcers concerned or anywitnesses involved in the action. Whenthe ofcers are defendants, no subpoena isnecessary for their appearance at a deposi-

tion being conducted by our own attorneys.It is in the interest of the ofcer to appearand render whatever assistance may be re-quired to the attorney representing the de-partment.

If department personnel are subpoe-naed by the plaintiff’s attorney, failure toappear can result in the court imposingsanctions, such as striking any afrmativedefenses, a contempt of court charge andmandatory payment of expenses (attorney

fees, cost of court reporter, etc.). Failure toattend a deposition may subject departmen-tal personnel to disciplinary action by thedepartment.

If a deposition will be inconvenientit can easily be postponed by phoning theattorney asking for the deposition and ar-ranging for a later time and date. Notice ofchange is the police ofcer’s responsibilityand must be given as far in advance as pos-sible.

At the DepositionOfcers who are giving a deposition

should wait until they have been asked toidentify themselves for the reporter and,after giving their name and other pertinentinformation, should state:

“I do not waive my right to read andsign this deposition.”

The court reporter will have the tran-script made of the deposition. The tran-

script will later be submitted to the ofcerfor reading, necessary corrections, and theofcer’s signature. If convenient, the ofcermay go to the ofce of the court reporter andsign the deposition. Otherwise, it is the re-sponsibility of the court reporter to submitthe deposition to the ofcer for his or her

Documents

MDPD Legal Guideline " Civil Rights"