Double
Jeopardy
Jeopardy
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| Copyright © 2006 - 2008 - Barry M. Baker - CareerPoliceOfficer.com |
| Disclaimer |
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| FIFTH AMENDMENT |
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
| DEPRIVATION OF RIGHTS UNDER COLOR OF LAW |
Summary:
Section 242 of Title 18 makes it a crime for a person acting under
color of any law to willfully deprive a person of a right or privilege
protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts
not only done by federal, state, or local officials within the their lawful
authority, but also acts done beyond the bounds of that official's lawful
authority, if the acts are done while the official is purporting to or
pretending to act in the performance of his/her official duties. Persons
acting under color of law within the meaning of this statute include
police officers, prisons guards and other law enforcement officials, as
well as judges, care providers in public health facilities, and others who
are acting as public officials. It is not necessary that the crime be
motivated by animus toward the race, color, religion, sex, handicap,
familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term,
or the death penalty, depending upon the circumstances of the crime,
and the resulting injury, if any.
Section 242 of Title 18 makes it a crime for a person acting under
color of any law to willfully deprive a person of a right or privilege
protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts
not only done by federal, state, or local officials within the their lawful
authority, but also acts done beyond the bounds of that official's lawful
authority, if the acts are done while the official is purporting to or
pretending to act in the performance of his/her official duties. Persons
acting under color of law within the meaning of this statute include
police officers, prisons guards and other law enforcement officials, as
well as judges, care providers in public health facilities, and others who
are acting as public officials. It is not necessary that the crime be
motivated by animus toward the race, color, religion, sex, handicap,
familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term,
or the death penalty, depending upon the circumstances of the crime,
and the resulting injury, if any.
| TITLE 18, U.S.C., SECTION 242 |
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.
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.
I once posed a constitutional question to a prosecutor. The prosecutor
looked at me and snapped, "How the hell should I know?" At that early
point in my police career, I couldn't appreciate the absolute brilliance
and accuracy of that response. As time passed, I would become more
and more aware of how legal speak can change the meaning of any word
or phrase no matter how clear the original meaning may be. Even Bill
Clinton, a lawyer and past President of the United States, made the
observation, "It depends on what the meaning of is... is." As silly as
that sounds, that's how lawyers think...and obfuscate.
looked at me and snapped, "How the hell should I know?" At that early
point in my police career, I couldn't appreciate the absolute brilliance
and accuracy of that response. As time passed, I would become more
and more aware of how legal speak can change the meaning of any word
or phrase no matter how clear the original meaning may be. Even Bill
Clinton, a lawyer and past President of the United States, made the
observation, "It depends on what the meaning of is... is." As silly as
that sounds, that's how lawyers think...and obfuscate.
You've probably already heard praise for the staying power of our
Constitution. That staying power is evidenced by how little the
document has been amended since the beginning of the Republic. Of
course... why should the Constitution be amended by the people when
judges can interpret the Constitution for its application to any
circumstance.
There's a lot of debate about judges usurping the powers of the
legislative branch of government. However, the judges get plenty of
help from the United States Congress which provides an endless supply
of legislation upon which judges can interpret and expand the power of
the judicial branch of government.
Constitution. That staying power is evidenced by how little the
document has been amended since the beginning of the Republic. Of
course... why should the Constitution be amended by the people when
judges can interpret the Constitution for its application to any
circumstance.
There's a lot of debate about judges usurping the powers of the
legislative branch of government. However, the judges get plenty of
help from the United States Congress which provides an endless supply
of legislation upon which judges can interpret and expand the power of
the judicial branch of government.
| Double Jeopardy |
When you become a police officer, you should be aware of your exposure
to double jeopardy under civil rights legislation. Okay...okay...I know
it's not real double jeopardy. At least that's what the judges and lawyers
contend. However, if you should ever be so unfortunate as to be tried
criminally in a state court and acquitted only to be retried – for the
same alleged offense(s), only by a different name, in a federal court – I
doubt that anyone, or any argument, could ever convince you that you
are not a victim of real double jeopardy.
Here's the good news. Even though this thing that looks, acts, and
produces the same results as double jeopardy exists, it is used
sparingly. In fact, it's almost exclusively reserved for police officers.
Yes, it applies to some other government officials including judges.
Yes...well, if anyone knows of any judges tried, acquitted and tried a
second time, send me an e-mail with the details.
Here's some more good news. The chances of your police career ending
in an avalanche of double jeopardy, unbelievable stress, and financial
ruin are low as long as you act reasonably toward every situation and
circumstance you encounter. Then again, what is reasonable? Most of
the time, your reasonable actions will carry the day; however, you must
always remember that social and political circumstances will always be
the top determining factors in assessing your fate when it comes to a
civil rights' prosecution.
Remember Rodney King? When a state court jury acquitted police
officers of charges stemming from a video tape and allegations of
excessive force, riots in Los Angeles ensued and 57 people died. The
Federal Government promptly charged, tried and convicted the officers
for violating King's civil rights and sent the police officers off to prison.
More recently, the tragic case of Sean Bell, shot and killed by police
officers in New York City, have brought calls for civil rights
prosecution. Again, the officers were tried in state court and acquitted
of all charges. The defendants in this instance chose trial by judge over
a jury trial. The fact that they were acquitted by the judge is a good
indication that the charges should not have been brought in the first
place. Do you think that social and political pressures had any affect on
the prosecutors' decision to proceed to trial? Here's the thing about a
trial by judge, especially involving a case that is politically and socially
explosive, – the judge is going to want to get it right.
While race has been, and will always be, a primary factor in civil rights
prosecutions, it has almost become a given that the victim will be
African-American, and the police officers will be white. On May 7, 2008,
I was watching Fox News when Megyn Kelly, a Fox news reporter and
legal analyst, was reporting the court verdict in the Sean Bell case. At
the end of her report, she stated that Sean Bell was African-American
and "all three police officers are white." Following the commercial
break, Ms. Kelly corrected her error by correctly stating that two of the
three police officers are African-American. Megyn Kelly is an
accomplished attorney, and her embarrassment was obvious.
As I write this, the Federal Government is still considering its options in
the Sean Bell case. The Reverend... Al Sharpton has already made his
effort to stoke the fires of social unrest by organizing a demonstration
and getting himself arrested; however, that failed to gain legs in the
newsrooms since no riots ensued and no people died. I'll go out on a
limb here and make two predictions: The three police officers will not be
tried for civil rights violations, and the New York City Police
Department will fire the officers. Of course, the latter prediction isn't
part of the limb...it's a given.
When you become a police officer, you must understand that your
decision to use force must always, without exception, be justified. Police
officers aren't perfect, and they do, on occasion violate peoples' civil
rights; however, the vast majority of violations are not intentional and
civil remedies exist to address violations. As long as a police officer's
conduct is not grossly negligent or criminal, things usually work
themselves out. However, where use of force, and particularly deadly
force, is involved, the aftermath can be devastating even if the force is
justified under circumstances reasonably perceived at the time.
Here's your dilemma. You're entering a profession where your use of
force is a certainty, and the fact that you may one day have to use
deadly force is a real possibility. If you're not prepared to accept this
reality, you should not become a police officer.
Here's my humble advice:
1. Only use deadly force to protect your life or the life of another.
2. Never condone, nor permit, excessive force to be used in your
presence.
3. Establish a reputation for fairness, and your abiding desire to always
do the right thing.
to double jeopardy under civil rights legislation. Okay...okay...I know
it's not real double jeopardy. At least that's what the judges and lawyers
contend. However, if you should ever be so unfortunate as to be tried
criminally in a state court and acquitted only to be retried – for the
same alleged offense(s), only by a different name, in a federal court – I
doubt that anyone, or any argument, could ever convince you that you
are not a victim of real double jeopardy.
Here's the good news. Even though this thing that looks, acts, and
produces the same results as double jeopardy exists, it is used
sparingly. In fact, it's almost exclusively reserved for police officers.
Yes, it applies to some other government officials including judges.
Yes...well, if anyone knows of any judges tried, acquitted and tried a
second time, send me an e-mail with the details.
Here's some more good news. The chances of your police career ending
in an avalanche of double jeopardy, unbelievable stress, and financial
ruin are low as long as you act reasonably toward every situation and
circumstance you encounter. Then again, what is reasonable? Most of
the time, your reasonable actions will carry the day; however, you must
always remember that social and political circumstances will always be
the top determining factors in assessing your fate when it comes to a
civil rights' prosecution.
Remember Rodney King? When a state court jury acquitted police
officers of charges stemming from a video tape and allegations of
excessive force, riots in Los Angeles ensued and 57 people died. The
Federal Government promptly charged, tried and convicted the officers
for violating King's civil rights and sent the police officers off to prison.
More recently, the tragic case of Sean Bell, shot and killed by police
officers in New York City, have brought calls for civil rights
prosecution. Again, the officers were tried in state court and acquitted
of all charges. The defendants in this instance chose trial by judge over
a jury trial. The fact that they were acquitted by the judge is a good
indication that the charges should not have been brought in the first
place. Do you think that social and political pressures had any affect on
the prosecutors' decision to proceed to trial? Here's the thing about a
trial by judge, especially involving a case that is politically and socially
explosive, – the judge is going to want to get it right.
While race has been, and will always be, a primary factor in civil rights
prosecutions, it has almost become a given that the victim will be
African-American, and the police officers will be white. On May 7, 2008,
I was watching Fox News when Megyn Kelly, a Fox news reporter and
legal analyst, was reporting the court verdict in the Sean Bell case. At
the end of her report, she stated that Sean Bell was African-American
and "all three police officers are white." Following the commercial
break, Ms. Kelly corrected her error by correctly stating that two of the
three police officers are African-American. Megyn Kelly is an
accomplished attorney, and her embarrassment was obvious.
As I write this, the Federal Government is still considering its options in
the Sean Bell case. The Reverend... Al Sharpton has already made his
effort to stoke the fires of social unrest by organizing a demonstration
and getting himself arrested; however, that failed to gain legs in the
newsrooms since no riots ensued and no people died. I'll go out on a
limb here and make two predictions: The three police officers will not be
tried for civil rights violations, and the New York City Police
Department will fire the officers. Of course, the latter prediction isn't
part of the limb...it's a given.
When you become a police officer, you must understand that your
decision to use force must always, without exception, be justified. Police
officers aren't perfect, and they do, on occasion violate peoples' civil
rights; however, the vast majority of violations are not intentional and
civil remedies exist to address violations. As long as a police officer's
conduct is not grossly negligent or criminal, things usually work
themselves out. However, where use of force, and particularly deadly
force, is involved, the aftermath can be devastating even if the force is
justified under circumstances reasonably perceived at the time.
Here's your dilemma. You're entering a profession where your use of
force is a certainty, and the fact that you may one day have to use
deadly force is a real possibility. If you're not prepared to accept this
reality, you should not become a police officer.
Here's my humble advice:
1. Only use deadly force to protect your life or the life of another.
2. Never condone, nor permit, excessive force to be used in your
presence.
3. Establish a reputation for fairness, and your abiding desire to always
do the right thing.
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