The vast majority of the law enforcement officers in the United States perform their jobs with respect for their communities and in compliance with the law. But there are incidents in which that is not the case.
Federal laws that address police misconduct 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. In addition, several laws also apply to federal law enforcement officers. The laws protect all persons in the United States (citizens and noncitizens).
Each law the Department of Justice (DOJ) enforces is briefly discussed below. In DOJ investigations—whether civil or criminal—the person whose rights have allegedly been violated is referred to as a victim and is often an important witness. The DOJ will usually inform the victim of the results of the investigation but does not act as the victim’s lawyer and cannot give the victim legal advice as a private attorney would.
The various offices within DOJ that are responsible for enforcing the laws discussed below coordinate their investigative and enforcement efforts when appropriate. For example, a complaint received by one office may be referred to another if necessary to address the allegations. And more than one office may investigate the same complaint if the allegations raise issues covered by more than one statute.
What is the difference between civil and criminal cases?
Criminal cases are usually investigated and prosecuted separately from civil cases, even if they concern the same incident. In a criminal case, DOJ brings a case against the accused person; in a civil case, DOJ brings the case (either through litigation or an administrative investigation) against a governmental authority or law enforcement agency.
In a criminal case, the evidence must establish proof “beyond a reasonable doubt” for the jury to convict the defendant. But in civil cases the plaintiff (DOJ) is only required to prove its claims by a “preponderance of the evidence.”
In criminal cases, DOJ seeks to punish a wrongdoer for past misconduct through imprisonment or other sanction. In civil cases, DOJ seeks to correct a law enforcement agency’s policies and practices that fostered the misconduct and, where appropriate, may require individual relief for the victim(s).
Federal Criminal Enforcement
It is a crime for one or more persons acting under color of law (the appearance of a legal right or authority) to willfully deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. See 18 U.S.C. § 241; 18 U.S.C. § 242.
“Under color of law” means that the person doing the act is using power given to them by a governmental agency (state, federal, or local). A law enforcement officer acts under color of law even if they are exceeding their rightful power.
The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, theft, 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.
These are criminal statutes and violations of these laws are punishable by fine or imprisonment, or both. There is no private right of action under these statutes—meaning these are not the laws under which a private individual may file a lawsuit.
Federal Civil Enforcement
The police misconduct provision of the United State Code (federal 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. See 34 U.S.C. §12601. The types of conduct covered by this law can include excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches, or arrests.
To be covered by this law, the misconduct must constitute a “pattern or practice”—it may not simply be an isolated incident. The DOJ must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct.
But unlike the other civil laws discussed below, DOJ does not have to show that discrimination has occurred in order to prove a pattern or practice of misconduct.
The remedies available under this law do not provide for individual monetary relief for the victims of the misconduct. Instead, they provide for injunctive relief—generally court orders to end the misconduct and make changes in the agency’s policies and procedures that resulted in or allowed the misconduct. There is no private right of action under this law—meaning individual citizens cannot file suit under this law—only DOJ may file suit for violations of the Police Misconduct Provision.
Civil Enforcement: Title VI of the Civil Rights Act of 1964 and the OJP Program Statute
Title VI of the Civil Rights Act of 1964 and the Office of Justice Programs Statute (OJP Program Statute) 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 DOJ. See 42 U.S.C. §2000d and 34 U.S.C. §10228. These laws prohibit both individual instances and patterns or practices of discriminatory misconduct—treating a person differently because of race, color, national origin, sex, or religion.
The misconduct covered by Title VI and the OJP Program Statute includes harassment or use of racial slurs, discriminatory arrests, discriminatory traffic stops, coercive sexual conduct, retaliation for filing a complaint with DOJ or participating in the investigation, discriminatory use of force, or refusal by the agency to respond to complaints alleging discriminatory treatment by its officers.
DOJ may seek changes in the policies and procedures of the agency to remedy violations of these laws and, if appropriate, also seek individual remedial relief for the victim(s). And individuals also have a private right of action (to file a lawsuit themselves) under Title VI and the OJP Program statute. But such individuals must first exhaust their administrative remedies by filing a complaint with DOJ if they want to file a lawsuit in federal court under the OJP Program Statute.
Civil Enforcement: 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 of the Rehabilitation Act prohibit discrimination against individuals on the basis of disability. See 42 U.S.C. 12131 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 they have a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an 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. The ADA also protects people who are discriminated against because of their association with a person who has a disability.
Section 504 of the Rehabilitation Act prohibits discrimination by state and local law enforcement agencies that receive financial assistance from DOJ. Section 504 also prohibits discrimination in programs and activities conducted by federal agencies, including law enforcement agencies.
These laws prohibit discriminatory treatment—including misconduct—on the basis of disability in virtually all law enforcement services and activities. These activities include 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 with DOJ or participating in the investigation.
If appropriate, DOJ may seek individual relief for the victim(s), in addition to changes in the policies and procedures of the law enforcement agency. And individuals have a private right of action under both the ADA and Section 504—meaning they have the right to file a lawsuit themselves. There is no requirement that individuals exhaust their administrative remedies by filing a complaint with DOJ first.
How to File a Complaint with DOJ
If you would like to file a complaint alleging a violation of the criminal laws discussed above, you may contact the Federal Bureau of Investigation (FBI), which is responsible for investigating allegations of criminal deprivations of civil rights. You may also contact the United States Attorney’s Office (USAO) in your district. The FBI and USAOs have offices in most major cities and have publicly listed phone numbers. You can find your local office online at https://www.fbi.gov/contact-us.
If you would like to report a violation of the Police Misconduct Statute, Title VI, or the OJP Program Statute, contact the Justice Department at www.civilrights.justice.gov.
Filing a Complaint About the Conduct of a Law Enforcement Officer from a Federal Agency
If you believe you are the victim of criminal misconduct by a federal law enforcement officer—such as Immigration and Customs Enforcement (ICE); the FBI; Alcohol, Tobacco, Firearms, and Explosives (ATF); Drug Enforcement Agency (DEA); United States Marshals Service; or Border Patrol)—you should follow the procedures discussed above for filing a complaint alleging violations of the criminal laws enforced by DOJ.
If you believe a federal law enforcement officer has engaged in misconduct toward you as described above under “Federal Civil Enforcement,” visit www.civilrights.justice.gov.
State Laws
Some states may have laws (statutes) that waive sovereign immunity for certain types of police misconduct and allow a citizen to file a lawsuit. These statutes that waive sovereign or governmental immunity are often known as tort claims acts.
In California, as in other states, both federal and state laws address police misconduct. Federal criminal statutes such as 18 U.S.C. § 241 and 18 U.S.C. § 242 prohibit willful deprivations of constitutional rights by law enforcement officers acting under color of law. These laws cover actions like excessive force, sexual assault, and false arrests, and do not require a discriminatory motive. Violations can result in fines or imprisonment, but individuals cannot file private lawsuits under these statutes. On the civil side, 34 U.S.C. § 12601 prohibits patterns or practices of law enforcement misconduct that violate constitutional or federal rights. The Department of Justice (DOJ) can seek injunctive relief to reform agency policies but cannot award individual monetary damages. Individuals have private rights of action under Title VI of the Civil Rights Act and the Americans with Disabilities Act (ADA), which allow them to sue for discriminatory treatment by law enforcement agencies receiving federal funds. California also has its own laws governing police conduct, including the Bane Act, which allows individuals to sue for certain violations of their civil rights, and the Tom Bane Civil Rights Act, which provides broader protections against hate violence and threats. Complaints about police misconduct can be filed with the DOJ or, for state and local officers, with the appropriate state agency or oversight body.
