I know people think being a “member of a protected class” means that the person is non-white, or a woman , or not a Christian - but that’s not what it means. Everyone is a member of several “protected classes” - there are sometimes differences based on whether you are talking abut Civil Rights Law or employment law or … but a white, male Christian belongs to as many protected groups as a black, female atheist.
It doesn't apply to cops or other government employees who are "equal opportunity assholes"* but although there are plenty of them, for a variety of reasons those situations tend not to result in death or injury.
There have been cases where people have been found not to have committed sexual discrimination due to sexual harassment because the person sexually harassed both men and women and therefore there was no discrimination.
Suffice it to say I think this shows the bias inherent in the system.
Your initial response seemed to imply that when the law says “race” it doesn’t mean white, protestant guys. It means everyone else. Cops don’t mess with white, protestant guys.
I’m not sure I am seeing the problem. If it is garden variety cops being assholes to people in general, then it is not a federal crime, it is a state issue. If a cop is being an asshole to someone because of his/her race or color, then the 14th Amendment makes that a federal issue (actually Sec. 242 passed pursuant to the 14th Amendment makes it a federal issue) as that was exactly the issue that the 14th Amendment was passed to prohibit.
I do find it weird that your due process rights can only be violated if done so because of race or religion. It only counts if the cop had a shitty reason for violating due process? No reason whatsoever makes it ok somehow?
Yes. The statute that is being discussed in this thread.
**UltraVires ** is reading the language in 18 USC 242 of “on account of such person being an alien, or by reason of his color, or race” as being an element of the crime. So that, in his reading, to prove a violation of 242, you need to show:
An official acting “under color of law”
Willfully deprives some other person of a constitution “right, privilege or immunity”
And does so “on account of such person being an alien, or by reason of his color, or race”
If the official willfully deprives everyone of the same right, then he is not doing it “on account of” (i.e. because of) alienage, etc. As a practical matter, we’re not going to be inclined to believe that a white person is being discriminated because of his race; but I think his “legal” point is that treating everyone the same way is a problem for the third element.
Now, I think UltraVires’ interpretation of the statute is reasonable. But (and maybe this should be my first point), I think it’s wrong. Instead, the statute has been interpreted as requiring:
An official acting “under color of law”
2a. Willfully deprives some other person of a constitution “right, privilege or immunity” OR
2b. Willfully subjecting that person “to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens”
As the Supreme Court explained: “We think that [the statute] authorizes the punishment of two different offenses. The one is willfully subjecting any inhabitant to the deprivation of rights secured by the Constitution; the other is willfully subjecting any inhabitant to different punishments on account of his color or race, than are prescribed for the punishment of citizens.” United States v. Classic, 313 U.S. 299 (1941).
Interestingly, the DOJ Civil Rights Division deals with this confusion on its website by simply removing the “punishment on account of” language from the statute (and replacing it with ellipses) and noting “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.”
This is further confirmed by the pattern jury instructions. For example, the Seventh Circuit has the elements as:
Edit: I could be wrong on this, but the 1941 decision is pretty clear and it’s consistent with the current jury instructions. I haven’t done much reasearch.
Very interesting. I thought my reading was pretty clear, but it seems as if it is not. I will do more reading on this after the weekend and this space launch. I very much appreciate this contribution.
But how does this not federally criminalize everything? If it is custom in my town to go punch a guy that insults my sister, and I do it, then I have committed a federal crime: I have violated the guy’s civil rights (the right to be free of a battery) under a local custom. Seems far too broad.
But if you read the text of the statute, I am doing it under “custom.” This person is further being denied his constitutional right to do this free from punishment, even if the state allows him to sue me in court. It still doesn’t make him free from being punched in the first instance.
Under your (I think) interpretation, there would never be a prosecution under this law as long as Minnesota prosecutes these officers. That is opposite of the Rodney King case, for example. Why would those cops have been prosecuted? California gave due process to the violation of his civil rights by trying the cops.
I think in the case of Rodney King and George Gayle the problem is they are dead. They were not sentenced to death by a court via due process. They were completely denied due process; that is the violation.
It does not matter how the state punished them. The police, in these cases, also violated this statute.
What convinced me is the location of the phrase “than are prescribed for the punishment of citizens” which has to relate to the “different punishments, pains, or penalties” language and why would you have the “on account of” language between those two if it was supposed to apply to the whole thing?
I don’t follow. First, I don’t think the “right to be free of a battery” is a constitutionally protected right. Second, even if it was, I don’t know of anything that would extend it to private actors. So, if I insult your sister, and you assault me, I don’t see how any constitutionally protected rights are implicated.
Now, a little bit of searching gives me Adickes v. SH Kress & Co, 398 U.S. 144 (1970), which considered “whether a “custom” for purposes of § 1983 must have the force of law, or whether, as argued in dissent, no state involvement is required.” The Court concluded that “a “custom or usage” for purposes of § 1983 requires state involvement and is not simply a practice that reflects longstanding social habits, generally observed by the people in a locality. Finally, the language of the statute itself points in the same direction for it expressly requires that the “custom or usage” be that “of any State,” not simply of the people living in a state. In sum, against this background, we think it clear that a “custom, or usage, of [a] State” for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials.” So I assume a similar rule is going to apply for a “custom” under Section 242.
It’s fairly easy to imagine a situation in which a private individual faces potential criminal liability (an individual who relies on a state statute or official policy to deny a constitutional right), but that’s going to be a pretty narrow set of events. Certainly no danger of federalizing everything. Most of the time “color of law” is going to mean, as the Seventh Circuit jury instructions say:
I still don’t follow. The LAPD officers were charged were having “willfully deprived [King] of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, including the right to be secure in his person and free from the intentional use of unreasonable force by one making an arrest under color of law.” I’ve never really understood how these issues are treated: so I don’t know if it’s an unlawful deprivation of liberty under the 14th Amendment or an unreasonable seizure under the 4th Amendment, but the point is more or less the same: they willfully deprived him of the right not to be subject to unreasonable force during an arrest. That deprivation was the civil rights violation.
When the founders enacted the Fifth Amendment, it only applied to prosecutions under federal law. It would not have barred a subsequent prosecution under state law, after a prosecution under federal law, since it did not apply to the states.
Do you have a cite showing that the founders meant that the Fifth would bar a subsequent prosecution under federal law if the individual had previously been prosecuted under state law?
They, of course, had no concept of 'violating someones civil rights" as a federal crime.
Federal law didnt cover crimes like murder- and in fact mostly still doesnt. In fact it *wasnt even a Federal crime to assassinate the President. *
So, the idea that someone could be hit once state then once feds would never have crossed their minds, Federal law simply didnt cover those sorts of things.