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Color Of Law
We all know stories of dirty cops who sexually violate innocent persons under the illicitly used protection of their badge and gun.  It is easy for us to understand how this is wrong.  It is just as illegal for a judge, prosecutor, or regulator to abuse their office in order to harm any one of us.  The law which protects us is referred to as "Color Of Law".   Abuse includes when a judge corruptly rules to favor secret affiliates, when a prosecutor abuses Prosecutorial Discretion in refusing to bring charges against his organized crime associates, or when an SEC official seeks personal advantage by tacitly approving financial crimes. 

While the law is straightforward, as was the case with many civil rights laws, the initial enforcement of the Color Of Law statutes are quite slow to gain traction.   However, several factors are combining to portend a groundswell of appropriate criminal efforts against these corrupt officials.  These include heightened awareness of misconduct issues involving public officers as well as general emerging trends:
  • Pendulum affect reversing the status quo assumption of absolute judicial and prosecutorial immunity
  • Reactionary public backlash to immense economic damage by the related national financial crisis
  • Dismantling of the news monopoly controlled by associates financial crime enterprises

These trends were instigated and fueled by a growing number of revelations of public official misconduct including:

  • Prosecutorial abuses such as by Mike Nifong, Eric Holder, and Eliot Spitzer
  • Judicial abuses including by Paul G. Hyman, G. Thomas Porteous, James Peck, and Rosemary Gambardella
  • Regulatory abuses by Kelly Stapleton, Roberta DeAngelis, and Linda Thomsen
    The following is from the FBI's page describing Color Of Law abuse:

    Color of Law Abuses


    U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.

    Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.

    The FBI is the lead federal agency for investigating color of law abuses, which include acts carried out by government officials operating both within and beyond the limits of their lawful authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.

    During 2009, the FBI investigated 385 color of law cases. Most of these crimes fall into five broad areas:

    • Excessive force;
    • Sexual assaults;
    • False arrest and fabrication of evidence;
    • Deprivation of property; and
    • Failure to keep from harm.

    Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is "reasonably" necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully "unreasonable" or "excessive."

    Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.

    False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person's civil rights may occur.

    Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.

    The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.

    Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.

    Civil Applications

    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 U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that 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:

    • Lack of supervision/monitoring of officers' actions;
    • Lack of justification or reporting by officers on incidents involving the use of force;
    • Lack of, or improper training of, officers; and
    • Citizen complaint processes that treat complainants as adversaries.
    Under Title 42, U.S.C., Section 1997, the Department of Justice has the ability to initiate civil actions against mental hospitals, retardation facilities, jails, prisons, nursing homes, and juvenile detention facilities when there are allegations of systemic derivations of the constitutional rights of institutionalized persons.