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What is misconduct?
By Tracy E. Barnhart
Published: 10/27/2008

Tracy Barnhart is a Marine combat veteran of Desert Storm / Desert Shield. In 2000, he joined the Ohio Department of Youth Services at the Marion Juvenile Corrections Facility, a maximum security male correctional facility housing more than 320 offenders. Barnhart works with 16 to 21-year-old, male offenders with violent criminal convictions and aggressive natures. In his monthly column, he discusses everyday issues affecting corrections professionals.

Every time you interact with a citizen or inmate it seems that they are constantly complaining that their rights have been violated, or they’ve been treated poorly or wronged in some way. When it comes right down to it, many officers do not even know what constitutes “misconduct” or how it’s investigated in the first place.

The vast majority of the law enforcement officers in this country perform their very difficult jobs with respect for their communities and in compliance with the law. Even so, there are incidents where this is not the case.

This document outlines the laws that address police misconduct. Federal laws that address this include both criminal and civil statutes. These laws cover the actions of state, county, and local officers, including those who work in prisons and jails.

Federal Criminal Enforcement
It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. (18 U.S.C. §§ 241, 242).

"Color of law" simply means that the person doing the act is using power given to him or her by a governmental agency (local, state, or federal). A law enforcement officer acts "under color of law" even if he or she is exceeding his or her rightful power.

The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, or the intentional fabrication of evidence resulting in a loss of liberty to another. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed.

Federal Civil Enforcement
"Police Misconduct Provision"
This law makes it unlawful for state or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (42 U.S.C. § 14141).

The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests.

In order to be covered by this law, the misconduct must constitute a "pattern or practice" -- it may not simply be an isolated incident. The investigation must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct.

However, unlike the other civil laws discussed below, the investigation does not have to show that discrimination has occurred in order to prove a pattern or practice of misconduct.

Pattern or practice misconduct investigations involve a comprehensive evaluation of the agency's policies, procedures and actual practices impacting on the areas where there are allegations of misconduct. Investigations include examination of specific incidents that may be pieces of an alleged pattern of misconduct and civil rights violations.

In general the investigations review the following kinds of information:
  • Conduct in-depth interviews with the police command staff, representatives of police labor organizations, persons who believe they have been subject to police misconduct, lawyers and community leaders who have dealings with the police department, and individual officers.

  • Evaluate the agency's education and training programs and curricula regarding areas involving alleged misconduct.

  • Review the agency's written policies and practices, as well as any systems for reporting or otherwise memorializing specific officer actions in the areas of alleged misconduct.

  • Review the agency's systems for monitoring and supervising officers, including any procedures and systems to inform supervisors of officer actions in areas of alleged misconduct. Also review any procedures and systems providing for supervisory feedback to officers on the propriety of such actions.

  • Analyze the agency's formal procedures and actual practices for receiving, investigating, and adjudicating citizen complaints. Also assess the agency's records regarding how complaints are adjudicated and whether and to what extent discipline is imposed or non-disciplinary corrective action is taken in appropriate cases.
Title VI of the Civil Rights Act of 1964 and the "OJP Program Statute"
Together, these laws prohibit discrimination on the basis of race, color, national origin, sex, and religion by State and local law enforcement agencies that receive financial assistance from the Department of Justice. (42 U.S.C. § 2000d, et seq. and 42 U.S.C. § 3789d(c)).

Currently, most persons are served by a law enforcement agency that receives DOJ funds. These laws prohibit both individual instances and patterns or practices of discriminatory misconduct, i.e., treating a person differently because of race, color, national origin, sex, or religion.

The misconduct covered by Title VI and the OJP (Office of Justice Programs) Program Statute includes, for example, harassment or use of racial slurs, unjustified arrests, discriminatory traffic stops, coercive sexual conduct, retaliation for filing a complaint with DOJ or participating in the investigation, use of excessive force, or refusal by the agency to respond to complaints alleging discriminatory treatment by its officers.

Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973
The Americans with Disabilities Act (ADA) and Section 504 prohibit discrimination against individuals with disabilities on the basis of disability. (42 U.S.C. § 12131, et seq. and 29 U.S.C. § 794).

These laws protect all people with disabilities in the United States. An individual is considered to have a "disability" if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.

The ADA prohibits discrimination on the basis of disability in all State and local government programs, services, and activities regardless of whether they receive DOJ financial assistance. it also protects people who are discriminated against because of their association with a person with a disability.

These laws prohibit discriminatory treatment, including misconduct, on the basis of disability in virtually all law enforcement services and activities. These activities include, among others, interrogating witnesses, providing emergency services, enforcing laws, addressing citizen complaints, and arresting, booking, and holding suspects. These laws also prohibit retaliation for filing a complaint or participating in the investigation.

This document should keep you informed about what is misconduct and save your career when you succumb to a weak moment. Bottom line; use the analogy, “Bell. Book, Candle.” Would you like your actions to be heard about, read about, or seen?

Ultimately, our ability to build and maintain community credibility is dependant on our basic values. However, values themselves, whether they are personal, organizational, or professional, are essentially non-negotiable.

Other articles by Barnhart:

The God complex Youth inmate subculture


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