Color of Law Violations
U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.
Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means the person is using authority given to him or her by a local, state, or federal government agency.
The FBI is the lead federal agency for investigating color of law
violations, which include acts carried out by government officials
operating both within and beyond the limits of their lawful authority.
Off-duty conduct may be covered if the perpetrator asserted his or her
official status in some way. Those violations include the following
acts:
Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is “reasonably” necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully “unreasonable” or “excessive.”
Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.
False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person’s civil rights may occur.
Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.
The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.
Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.
Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is “reasonably” necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully “unreasonable” or “excessive.”
Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.
False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person’s civil rights may occur.
Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.
The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.
Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.
Filing a Complaint
To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:
FBI
investigations vary in length. Once our investigation is complete, we
forward the findings to the U.S. Attorney’s Office within the local
jurisdiction and to the U.S. Department of Justice in Washington, D.C.,
which decide whether or not to proceed toward prosecution and handle any
prosecutions that follow.
Civil Applications
While the FBI does not investigate civil violations, Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:
To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:
- All identifying information for the victim(s);
- As much identifying information as possible regarding the subject(s), including position, rank, and agency employed;
- Date and time of incident;
- Location of incident;
- Names, addresses, and telephone numbers of any witness(es);
- A complete chronology of events; and
- Any report numbers and charges with respect to the incident.
Assistant Attorney General
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, Northwest
Washington, DC 20530
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, Northwest
Washington, DC 20530
Civil Applications
While the FBI does not investigate civil violations, Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:
- Lack of supervision/monitoring of officers’ actions;
- Lack of justification or reporting by officers on incidents involving the use of force;
- Lack of, or improper training of, officers; and
- Citizen complaint processes that treat complainants as adversaries.
Freedom of Access to Clinic Entrances (FACE) Act Violations
Violations
Beginning in the mid-1980s, the United States witnessed a dramatic
escalation in the number of acts of violence and harassment directed
towards reproductive health care providers and clinics. These incidents,
typically in the form of blockades, arson, use of chemical irritants,
bomb threats, death threats, stalking, and vandalism, continued well
into the next decade. In 1993, the first murder of a reproductive health
care provider occurred. Dr. David Gunn, a physician who provided
abortion services, was murdered during an anti-abortion protest at a
clinic in Pensacola, Florida.
Since the passage of the FACE Act, the number of violent crimes committed against reproductive health care providers and facilities has dramatically decreased. The FBI and its local, state, tribal, and federal law enforcement partners aggressively pursue all violations of the statute for eventual prosecution by local United States Attorney’s Offices and/or the Department of Justice Civil Rights Division in Washington, D.C.
In addition to the FACE Act, other frequently considered federal statutes in FACE Act investigations include: Arson or Bombing, Title 18 U.S.C. Section 844(h); Mail Threats/Threatening Communications, Title 18 U.S.C. Section 875(c); Interstate Threats, Title 18 U.S.C. Section 876(c); and Use of Firearm During the Commission of a Federal Violation, Title 18 U.S.C. Section 924(c). Violators of the FACE Act are subject to criminal penalties, including imprisonment and fines. The severity of the punishment demands upon the nature of the offense and whether or not the person who committed the crime is a repeat offender.
It should be noted the FACE Act does not criminalize the lawful exercise of one’s constitutional rights. For instance, it is not a violation to protest peacefully outside of a reproductive health care facility, including such actions as carrying signs, chanting, singing hymns, distributing literature, and shouting as part of First Amendment protected activities – as long as no threats are communicated and facility access is in no way impeded.
==========================================
Basilis N. Stephanatos, PhD, JD
____________________________________________________________
February
4, 2019
William
T. Walsh
Clerk,
United States District Court
District
of New Jersey
M.L.
King, Jr. Federal Building & U.S. Court House
50
Walnut Street
Room
4015
Newark,
New Jersey 07101-0999
Tel.: 973-645-3730
THE HONORABLE JOHN MICHAEL VAZQUEZ
United States District Judge
Lautenberg U.S. Post Office &
Courthouse
2 Federal Square, Room 417
Newark, New Jersey 07102
Tel.: 973-297-4851/973-645-2157(Deputy Clerk)
RE: Civil Action No. 02:12-cv-01793 (JMV-JBC)
JURY FOUND STEPHANATOS NOT-GUILTY
Dear Judge Vazquez:
I am writing to inform the
Court that a Bergen County jury of my peers has found me not guilty of all the
fabricated charges by Defendants Ronald A. Lucas, Victor D’Agostino that
somehow I had pointed a gun at the officers on June 28, 2011. This was a not-guilty verdict on all four (4)
very serious charges on the fraudulently obtained indictment in September 2011.
THE
OFFICERS MADE NUMEROUS ADDITIONAL CONTRADICTING AND UNCORROBORATED STATEMENTS
DURING THEIR TESTIMONY EVIDENCING FABRICATION OF EVIDENCE AND CONSPIRACY TO
PROSECUTE MALICIOUSLY
During their January 29,
2019 testimony (both direct and cross) Defendants Lucas and D’Agostino made a
very significant number of additional contradicting and uncorroborated statements;
this led to the non-guilty verdict.
Importantly, the sheriff
officers testified under oath that they failed to “knock and announce” prior to
performing a search of my home.
The numerous contradicting
statements of the sheriff officers provide further proofs that they fabricated
their charges against Dr. Stephanatos.
I will submit the additional
evidence to this Court only if and when you order me to do so.
THE
PASSAIC COUNTY PROSECUTOR PROVIDED “SMOKING GUN” EVIDENCE AGAINST ROBERT DEL
VECCHIO
On January 23, 2019, as part
of the pre-trial discovery, the Passaic County prosecutor, Mr. Stephen
Bollenbach, provided me with several handwritten pages prepared by Defendant
Robert Del Vecchio in May 2011. The newly
discovered pages show that Defendant Del Vecchio faxed letters to the Passaic
County Sheriff stating that Stephanatos was a “dangerous Deft” and that Stephanatos had threatened him on May 24,
2011. All these written statements by
Defendant Del Vecchio were fabricated by him to prejudice the Passaic County
Sheriff against Stephanatos and to force Stephanatos out of his home using the
void ab initio ex-parte writ of possession.
Judge Guida, the presiding judge over the criminal
proceedings ruled that Dr. Stephanatos did not threatened conspirator Del
Vecchio with any physical violence and he only warned Del Vecchio of legal
action.
I will submit the newly
discovered additional evidence to this Court only if and when you order me to
do so.
THE
MALICIOUS PROSECUTION CLAIM WILL BE SUBMITTED TO THIS COURT ONLY WHEN ORDERED
TO DO SO
I am also writing to inform
the Court that I will be filing a claim of malicious prosecution with this or
another federal court. This claim is based
on the Fourth Amendment and it is timely, as the criminal proceedings ended in
my favor on February 4, 2019. The Fourth
Amendment malicious prosecution claim is a tort action brought in civil court
to recover money damages for the harm suffered from the malicious claim. I will seek to recover money from the
Defendants for the various costs associated with having to defend against the
baseless and vexatious charges. The
damages will include the cost of making a $300,000 cash bond, attorney fees,
and economic harm from being wrongfully incarcerated and not being able to find
employment or pursue my law license as a result of the pending charges for the
last 8 years. I will also seek to recover money for the emotional distress
associated with being jailed and wrongfully prosecuted for the last 8 years by
the Passaic County sheriff and the Defendant officers and for the malicious
statements made by Defendant Robert Del Vecchio to the sheriff, damaging my
good standing and reputation in the community for the last 8 years.
A
FOURTEENTH AMENDMENT DUE PROCESS CLAUSE STAND-ALONE CLAIM ALSO EXISTS UNDER
SECTION 1983 FOR FABRICATION OF EVIDENCE
Pursuant to Halsey v.
Pfeiffer, 750 F.3d 273 (3d Cir. 2014), a court should not foreclose a
Fourteenth Amendment stand-alone claim for fabrication of evidence even if a
Fourth Amendment malicious prosecution claim fails (for example) because of the
existence of probable cause even without the fabricated evidence. Such a claim is available even if the
criminal defendant is acquitted, “if there is a reasonable likelihood that,
absent the fabricated evidence, the defendant would not have been criminally
charged.” Black v. Montgomery County, 835 F.3d 358, 370 (3d Cir.
2016). In Michele Black v. County of Montgomery, No. 15-3399 (3d Cir.
2016) where the Third Circuit ruled that “an acquitted criminal defendant
may have a stand-alone fabricated evidence claim against state actors under the
due process clause of the Fourteenth Amendment if there is a reasonable
likelihood that, absent that fabricated evidence, the defendant would not have
been criminally charged.” This
fabrication of evidence claim has already been filed with the Court in October
2018.
Based on evidence discovered
during the trial, Stephanatos has additional claims against the Passaic County
Sheriff.
1.
A §1983 CLAIM FOR FAILURE TO PROPERLY
TRAIN, SUPERVISE AND CONTROL OFFICERS (AGAINST THE PASSAIC COUNTY SHERIFF
DEPARTMENT);
2.
A STATE LAW TORT CLAIM FOR FAILURE TO
PROPERLY TRAIN, SUPERVISE AND CONTROL OFFICERS (AGAINST THE SHERIFF
DEPARTMENT);
3.
A §1983 CLAIM FOR FAILURE TO INVESTIGATE
(AGAINST THE PASSAIC COUNTY DEFENDANTS)
I will submit the malicious
prosecution claim and the failure to investigate, train and supervise the
sheriff officers, including the newly-obtained discovery and trial testimonies,
to this Court only if and when you order me to do so.
Respectfully submitted,
________________________________
Basilis
N. Stephanatos, PhD, JD
PS.: I had the
duty to report to this Court the results of the criminal proceedings and the
availability of newly discovered evidence to correct manifest error of law or
fact. Please do not consider this letter
as a violation of a standing court order regarding the submission of documents
to the Court.
CERTIFICATION
OF BASILIS N. STEPHANATOS
I hereby certify under penalty of
perjury that the foregoing statements made by me are true and correct. I am aware that if any of the foregoing
statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C.
§1746.
DATE: February
12, 2019
Respectfully Submitted,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
