Deprivation of Rights Under Color of Law

I’m anguished and angry about the death of George Floyd caused by Minneapolis police officers. Some will note when reading this post, that I’m not addressing the rioting and looting taking place around the US, or the deaths and injuries of police officers trying to keep peace and protect property. Please don’t doubt my anguish and anger about those horrific incidents too. I pray that no more lives are lost. However, in this space, I want to focus on my mission to show the public who the FBI is and what the FBI does and cover how the FBI investigates civil rights violations involving the Deprivation of Rights Under Color of Law.

The FBI, the primary law enforcement agency responsible for investigating violations of federal civil rights, is investigating the death of George Floyd as a possible violation of Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law –actions taken by a person acting under authority of federal, state, or local laws to willfully deprive someone of their constitutional or other legal rights. In the case of George Floyd, that means his right to breathe and right to live. The federal civil rights statute covers incidents of police brutality and failure to keep from harm. I reviewed a civil rights investigation in FBI Retired Case File Review Episode 117: Kevin Rust–Police Excessive Force, Color of Law Violations.

This weekend, because I’m a member of the Society of Former Special Agents of the FBI, I received an email message from FBI Director Christopher Wray about the FBI’s investigation into the circumstances of Mr. Floyd’s death. Here are several paragraphs from his statement:

“This investigation is a top priority, and experienced prosecutors and FBI agents have been assigned to the matter.

The investigation will determine whether the actions by the former Minneapolis police officers involved in this incident violated federal law. That means talking to witnesses, compiling all available information, and evaluating evidence. If we determine there has been a violation of federal law, the Department of Justice will seek criminal charges. We will move quickly in this investigation, while strictly adhering to process and following the facts wherever they may lead.

Civil rights investigations are at the heart of what we do in the FBI, for the simple reason that civil rights and civil liberties are at the very heart of who we are as Americans. These investigations have been a critical part of our work in the FBI for decades, and that will never change.

Law enforcement officers have indispensable and often dangerous jobs, but that doesn’t diminish the crucial, overarching role we play in society–to protect and serve all citizens no matter their race, creed, orientation, or station in life. This, of course, includes those citizens who are in law enforcement custody.

When we fail to honor their rights, we not only tarnish the badge we wear, we completely erode the trust so many of us in law enforcement work so hard to build, particularly within minority communities. The events this past week in Minneapolis clearly illustrate just how quickly that trust can be lost. As law enforcement, we’re bound by an oath to serve all members of our community with equal compassion, professionalism, dignity, and respect. The American people should expect nothing less from us.”

I also spoke with retired agent Tom Smith, who worked Color of Law investigations while serving in the Chicago Division. After his retirement, the Superintendent of the Chicago Police Department named Tom Smith, Chief Investigator of the Office of Professional Standards. His sixty civilian investigators reviewed all police shootings, use of force complaints, and reports of domestic violence involving Chicago police officers. I asked Tom how the FBI investigates civil rights violations and what it was like to investigate these matters. He said the cases were challenging. He noted there is no excuse for abusive behavior, but that police officers commit acts of brutality due to lack of training, lack of liability, and a culture that, sometimes, discourages others to speak up when they witness bad behavior. (I must also add the ugly truth of racial bias.) Tom noted that an excuse he often heard was that officers felt pressured by state attorneys to obtain confessions from suspects which may have led to abusive tactics. According to Tom, each year, police departments around the country pay out millions of dollars in settlements for the excessive actions of their officers.

Most police departments use Internal Affairs or Shooting Review units, or special Citizen Review Committees to investigate complaints of excessive force or wrongful death. However, in the most egregious cases or instances where justice may have been denied, the Department of Justice and organizations like the NAACP will request that the FBI open an investigation. The FBI investigation can occur at the same time as investigations and reviews are being conducted by other agencies. Bureau agents will interview the same victims and witnesses and collect and analyze the same evidence. Civil rights cases conducted by the FBI are separate and distinct, and not dependent on the results of investigations being conducted by other entities. Tom noted that often the FBI is at a disadvantage because agents were not at the alleged crime scene and often open their cases months after the incidents being investigated occurred. The completed  investigation is then given to the Department of Justice to determine if federal charges will be filed.

Tom Smith noted that in the George Floyd investigation, the agents will have video evidence from stationary cameras in the area, photos and clips captured by witnesses, and police body camera footage.

You can find more information about the FBI’s investigation of Civil Rights violations here: https://www.fbi.gov/investigate/civil-rights

My sincere condolence goes out to the family and friends of George Floyd. I pray they receive justice.