Color of Law Matters — Spokane FBI Chief Egon “Dez” Dezihan
Posted by Arroyoribera on August 2, 2007
(As it turns out, Spokane has in its midst a national expert on police misconduct, Spokane FBI office chief Egon “Dez” Dezihan, author of the unpublished FBI report “Color of Law Matters”. We invite Messr. Dezihan to actively join the public debate on Spokane’s out-of-control police department.)
by John R. Schafer
The vast majority of police officers perform their difficult jobs in a professional manner. However, exceptions do occur. In one instance, an on-duty sheriffs deputy approached a verbally abusive drug addict strapped to a gurney in an emergency room, drew his pistol, placed the barrel of the weapon into the addict’s mouth, and threatened to pull the trigger if he did not stop shouting. Police misconduct also encompasses less obvious wrongdoing, such as striking suspects more than necessary or threatening to harm them if they do not cooperate.
Even those officers cleared of wrongdoing often do not understand the color of law investigative protocol and feel unjustly targeted by the U.S. Department of Justice (DOJ) or the FBI, which have jurisdiction in these matters. In order to better comprehend color of law investigations, officers should understand the role of the FBI and DOJ in color of law investigations, the legal guidelines for police misconduct, and the investigative protocol in these cases. More important, officers can take steps to prevent unnecessary color of law investigations.
In 1957, President Eisenhower mandated that DOJ prosecute civil rights violations, to include police misconduct, thus, allowing uniform application of civil rights law across the nation.  Approximately 74 percent of all civil rights investigations reported each year allege police misconduct.  Because state and federal authority for civil rights investigations comes from different statutes, double jeopardy usually does not apply. In fact, dual prosecution may occur because separate sovereigns (i.e., federal and state) may prosecute individuals. One well-known example of dual prosecution occurred when a Los Angeles County Superior Court jury acquitted the four police officers who beat Rodney King. After reviewing the jury’s verdict, DOJ elected to charge the officers in federal court with color of law violations.
Approximately 30 attorneys from the DOJ Civil Rights Division and 190 FBI special agents in 56 field offices investigate and prosecute civil rights matters.  The most common types of police misconduct include excessive force, sexual assault, intentional false arrest, falsifying evidence, extortion, and other related offenses. Of the nearly 10,000 color of law complaints received each year, DOJ prosecutes only about 30 police officers.  The remaining cases either lack prosecutive merit or do not require formal judicial proceedings to resolve. Additionally, these figures do not include police misconduct complaints adjudicated at the state or local level.
COLOR OF LAW STATUTES
The term color of law derives from the federal statute, Title 18, U.S. Code, Section 242, titled “Deprivation of Rights Under Color of Law,” which primarily governs police misconduct investigations. This statute makes it a crime for any person acting under the color of law to willfully deprive any individual residing in the United States those rights protected by the Constitution and U.S. laws. Other related federal statutes include Title 18, U.S. Code, Section 241, “Conspiracy Against Rights”; Title 18, U.S. Code, Section 1512, “Obstruction of Justice”; and Title 18, U.S. Code, Section 1001, “False Statements.” Federal statutes generally restrict color of law investigations to official actions taken by police officers, federal agents, sheriffs deputies, correctional officers, and other public safety officials. However, off-duty officers who assert their official status also may face prosecution. In rare cases, the actions of security guards, private citizens, judges, defense attorneys, and prosecutors who willfully participate with federal, state, or local law enforcement officials in the commission of color of law violations fall within the purview of the federal statutes.
Punishment for color of law violations varies depending on the gravity of the offense. Penalties for minor infractions range from probation to 1-year imprisonment, a fine, or both.  Under aggravated circumstances, offenders risk the maximum sentence of imprisonment up to 10 years, a fine, or both. If loss of life occurs as a result of intentional police misconduct, the officer could face the death penalty. 
Color of law investigations comprise two categories–criminal wrongdoing and pattern-and-practice misconduct. Criminal wrongdoing focuses on individual misconduct, while pattern-and-practice misconduct leads to civil proceedings and examines systemic misconduct in law enforcement agencies. Police officers wontedly using traffic stops as a tool of intimidation to discourage minorities from entering town illustrates pattern-and-practice misconduct. To sustain this type of misconduct, the actions of officers in a department must prove pervasive. The Special Litigation Section of DOJ’s Civil Rights Division investigates most pattern-and-practice violations.
Criminal matters require proof beyond a reasonable doubt; however, civil proceedings need only establish the preponderance of the evidence–a lower standard of proof.  Punishment for criminal wrongdoing is imprisonment, a fine, or both. In civil proceedings, a judge orders the police department to correct any deficiencies in their administrative, training, or policy procedures.
DOJ or the FBI can initiate a color of law investigation based on credible media reports or a complaint from any person who does not have a history of providing false information. Any valid complaint triggers a color of law investigation; however, the extent of the investigation depends on the specific facts of the complaint. Two types of color of law investigations exist: a preliminary investigation and a substantial case investigation.
The preliminary investigation gleans sufficient information for DOJ attorneys to evaluate the incident with the least amount of disruption to the police officer’s daily routine. The investigative steps in the preliminary investigation include identifying and interviewing the victims; identifying and interviewing witnesses; conducting criminal checks for both subjects and complainants; photographing the injuries, if appropriate; and obtaining police reports and medical records or a coroner’s report in the event of a death. Additionally, the FBI notifies in writing the officer’s employing agency of the ongoing color of law preliminary investigation. Also, the preliminary report incorporates a list of individuals that DOJ will notify at the conclusion of the investigation. This list contains the name and address of the complainant, the subject or subjects of the investigation, and a supervising official at the employing law enforcement agency. After completing these steps, the FBI forwards the report to DOJ for review.
The FBI mandates that its agents complete preliminary color of law investigations within 21 days of receipt of the complaint; however, a DOJ decision may take months to finish because of the large number of reports submitted each year. This delay often leaves a police officer frustrated while awaiting the outcome of the DOJ review. The DOJ notification letter also discourages some officers because it states only that the facts of the case do not support federal prosecution. Due to the large volume of complaints, DOJ does not tailor the notification letters to each specific complaint. The generic wording in these letters may not specifically exonerate the officer, leaving the officer and the officer’s employer to wonder if the report lacked sufficient evidence to support a prosecution or if the officer acted properly. Neither the length of the DOJ response nor the vagueness of the notification letters indicates any level of guilt on the part of the officers involved. Regardless of the outcome of the federal i nvestigation, the employing agency still maintains the prerogative to discipline violators of administrative policies.
Substantial Case Investigation
If the facts cited in the preliminary report warrant additional investigation, DOJ initiates a substantial case. The investigative steps beyond the preliminary investigation include interviewing medical personnel and physicians, if appropriate; reviewing police logs and internal affairs reports; interviewing the subject or subjects of the investigation; photographing and diagramming the crime scene; and securing all relevant evidence and witness testimony. When the facts of the substantial case indicate that the subjects may have violated the civil rights of the victims, a federal grand jury convenes to formally investigate the incident.
The Grand Jury Process
A federal grand jury consists of between 18 and 24 citizens, who have the power to subpoena witnesses and examine all relevant evidence. The grand jury inquiry establishes victim and witness credibility, provides the subject an opportunity to testify, and determines probable cause. When the inquiry concludes, the grand jury hands down a true bill or a no bill. A true bill, also referred to as an indictment, means the grand jury determined that probable cause exists to believe that a crime occurred and that the subject of the inquiry committed the crime. After the grand jury indicts a subject, a trial in federal court follows. A no bill means the grand jurors found insufficient evidence to sustain a federal prosecution.
The public, activist groups, and internal affairs units routinely scrutinize the conduct of law enforcement officers. However, this scrutiny should not prevent police officers from effectively doing their jobs. Neither the subjects of a color of law preliminary investigation nor their employers should assume any wrongdoing on the part of the officers. A preliminary investigation simply means that a citizen filed a complaint; the investigation that follows determines the veracity of the allegation.
In many instances, offenders, upon arrest, allege police misconduct to divert attention from their own misdeeds. Typically, DOJ does not open an investigation but, rather, allows the local judicial system to examine the alleged misconduct in conjunction with the complainant’s pending charges. In the event the allegations are substantiated, DOJ will initiate a preliminary investigation.
PREVENTING COLOR OF LAW INVESTIGATIONS
Although police officers cannot prevent color of law complaints, they can take steps to ensure that their actions do not place them in jeopardy. Police officers carry batons, pepper spray, guns, and other tools to protect their lives and the lives of others. Officers should use these tools within the parameters of state and federal laws and their agency’s policies.
Most officers exercise good judgment in crisis situations, but they often do not adequately record their actions. In the event of a misconduct complaint, the reviewing officials rely almost exclusively on reports to make an initial judgment regarding justification for the use of force. In many cases, the lack of information in reports triggers substantial case investigations when, in fact, the officers did not violate any laws.
Complete and accurate reports reflect officers’ actions regardless of how officers or their colleagues judged those actions. Good intentions do not always yield good results. For example, a California state prison correctional officer struck an aggressive inmate several times in the head with a baton, causing severe injuries. The officer who struck the inmate, along with several other officers present during the attack, failed to accurately record the sequence of events. Additional investigation determined that some officers enhanced their reports, without the subject officer’s knowledge, attempting to help him explain his actions. To compound matters, this prison’s policy required that officers complete all reports before going home. Because this incident occurred at the end of the shift, the officers wrote incomplete and inaccurate reports in a rush to go home. The conflicting reports provided the impetus for a substantial case investigation, which, in the end, exonerated the officers. Nevertheless, the intense inquiry significantly disrupted the officers’ professional and personal lives.
In another example, three officers shot and killed a transient. A review of the incident reports could not determine if the officers’ actions were justified because two of the officers’ reports contained no more that 500 words, and one officer described the shooting in just 98 words. After a long and exhaustive grand jury investigation, the grand jurors found insufficient evidence for indictments. Again, incomplete report writing caused unnecessary stress in the officers’ lives.
Many officers write such words or phrases in reports as “lunged,” “menacing,” or “furtive move to the waistband.” Instead of using the word “lunged,” the officer should describe the actions of the offender. For example, “the offender, holding a 9-inch butcher knife in his outstretched right hand, took three rapid steps toward me.” Instead of using the word “menacing,” the officer should write, for example, “the offender squinted her eyes, clenched her teeth, and made deep growling sounds.” When officers fear for their lives, or the lives of others, they should narrate what specific actions led them to this state of mind. In addition to a description of the offenders’ actions, a notation of the officer’s state of mind provides a more complete picture as to why the officer responded with a measure of force. Such phrases as “furtive move to the waist band” or “shiny metal object” often lack credibility because of their overuse and, often, misuse.
A good report also addresses the legal elements as well as specific agency policies that authorize the use of force. Including these issues in the report helps the reviewing official determine whether the use of force was justified. Officers must know when to use force, how much force to use, and, most important, how to accurately record their actions in a report. Written reports often provide officers with the only opportunity to explain their actions outside the courtroom setting. A well-written report can prevent an otherwise-long-and-stressful color of law investigation.
Empirical evidence suggests that a high number of color of law investigations stem from pursuits. When pursuits terminate, police officers sometimes vent their excess energy on suspects. Devising techniques to dissipate excess energy in an appropriate manner often prevents the spontaneous use of excessive force. With one technique, partners agree to monitor each other’s behavior at the end of a pursuit, to include restraint, if necessary. Police administrators can devise other simple, yet effective, techniques to reduce the possibility of officer misconduct and subsequent color of law investigations. This could include something as simple as periodically reminding officers at role call to be mindful of color of law investigations.
Even police officers who conscientiously perform their duties should expect allegations of police misconduct at some point in their careers. However, officers can prevent most misconduct complaints if they conduct themselves in a professional manner and write detailed, accurate reports. A report not only records facts but also reflects the writer’s integrity.
Police oversight and color of law investigations constitute a part of today’s policing environment. Understanding the purpose and the mechanics of color of law investigations not only reassures police officers but also ensures that the public receives professional police services.
Special Agent Schafer serves in the Lancaster Resident Agency of the FBI’s Los Angeles, California, Field Office.
(1.) For a complete definition of color of law, see, 18 U.S.C. [ss] 242.
(2.) Alexis Agathocleous and Heather Ward, Prosecuting Police Misconduct (New York: Vera Institute of Justice, 1998), 1-2.
(3.) Egon Dezihan, et al., “Color of Law Matters,” (Washington, DC: U.S. Department of Justice, Federal Bureau of Investigation, unpublished).
(4.) Louis J. Frech, “Ensuring Public Safety and National Security Under the Rule of Law – Report to the American People on the Work of the FBI 1993- 1998, (Washington, DC, 1999), 2; Egon Dezihan, et al., “Civil Rights Program, National Academy Manual,” (Quantico, VA: U.S. Department of Justice, Federal Bureau of Investigation), 2.
(5.) Supra note 2.
(6.) 18 U.S.C. [ss] 242.
(8.) “Addressing Police Misconduct – Laws Enforced by the United States Department of Justice, Civil Rights Division,” (Washington, DC), 3.
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