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Police Misconduct and Civil Rights Law
134 8749

Claims of police misconduct brought against law enforcement officials must be analyzed from both a factual and legal perspective. This analysis will necessarily involve a three-step process. First, the counsel for the defendant must identify and understand the claimant's theory of recovery as against his client--i.e., what must the claimant establish in order to recover in an action at law? Second, counsel must consider available defenses. Is the defendant immune from liability to the claimant and, if so, under what circumstances? Finally, if the defendant is not immune from liability, what relief is the claimant entitled to recover? Simultaneously with the performance of this analysis, the defense counsel must also take steps to develop whatever information and documentation may be necessary to defeat the claim, to support all available defenses, and to minimize or avoid any relief sought by the claimant.
The following is intended as a "checklist" to guide the defense attorney through the analytical process:
CLAIMANT'S THEORY
Was The Claimant Deprived Of A Constitutional Or Federally-Protected Right
Constitutional Rights
First Amendment (protects freedom of religion, free speech, freedom of the press and the right to peaceably assemble)
Examples:
Denial of permit to march, leaflet or speak in a public place--
Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930 (1975).
Arrest of speaker at political rally --
Kay v. N.H. Dem. Party, 821 F.2d 31 (1st Cir. 1987).
Harassment of religious organization --
Nashua Valley Christian Fellowship, Inc. v. Town of Ayer, 623 F. Supp. 542 (D. Mass. 1985).
Ejection of citizen from public meeting --
Hansen v. Bennett, 948 F.2d 397 (7th Cir. 1991), cert. denied, 112 S.Ct. 1939 (1992).
Fourth Amendment (protects right to be free from unreasonable searches and seizures; provides that warrants shall issue only upon probable cause, supported by oath or affirmation)
Examples:
False arrest --
Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991).
False imprisonment or illegal detention --
Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990).
Warrantless search --
Tyree v. Keane, 400 Mass. 1 (1987).
Warrantless arrest --
Fields v. City of S. Houston, 922 F.2d 1183 (5th Cir. 1991).
Failure to timely release pretrial detainee --
Brown v. Coughlin, 704 F. Supp. 41 (S.D.N.Y. 1989).
Apprehension of suspect by use of deadly force --
Tennessee v. Garner, 105 S.Ct. 1694 (1985).
Apprehension of suspect with excessive force --
Graham v. Connor, 109 S.Ct. 1865 (1989).
Police pursuit --
Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993).
Sixth Amendment (protects right to an attorney in criminal proceedings)
Example:
Information garnered from surreptitious monitoring of conversations with attorney used to prejudice claimant's defense in criminal trial --
Weatherford v. Bursey, 429 U.S. 545 (1977);
St. Clair v. Schriber, 916 F.2d 1109 (6th Cir. 1990).
Eighth Amendment (prohibits cruel and unusual punishment)
Examples:
Inmate assaulted by guards --
Whitley v. Albers, 475 U.S. 312 (1986).
Inmate assaulted by fellow inmates --
Davidson v. Cannon, 474 U.S. 344 (1986);
Berry v. City of Muskogee, Okla., 900 F.2d 1489 (10th Cir. 1990).
Inmate denied certain privileges, such as visitation, practice of religious beliefs, access to legal materials, mail, etc. --
Sowell v. Vose, 941 F.2d 32 (1st Cir. 1991).
Inattention to medical needs of inmate --
Estelle v. Gamble, 429 U.S. 97 (1976);
Sires v. Berman, 834 F.2d 9 (1st Cir. 1987).
Suicide of inmate --
Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986).
Fourteenth Amendment (a person's rights to life, liberty or property shall not be deprived without due process of law, nor shall any person be denied equal protection of the laws)
Examples:
Punishment of pretrial detainee --
Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.), cert. denied, 112 S.Ct. 972 (1991).
Inattention to medical needs of pretrial detainee --
Holmes v. Sheahan, 930 F.2d 1196 (7th Cir.), cert. denied, 112 S.Ct. 423 (1991);
Gaudreault v. Municipality of Salem, 923 F.2d 203 (1st Cir.), cert. denied, 111 S.Ct. 2266 (1990).
Suicide of pretrial detainee --
Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988), cert. denied, 109 S.Ct. 1338 (1989);
Manarite v. City of Springfield, 957 F.2d 953 (1st Cir.), cert. denied, 113 S.Ct. 113 (1992).
Any conduct that "shocks the conscience" or "offends the community's sense of fair play and decency" --
Rochin v. California, 342 U.S. 165 (1952);
Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991).
Illegal interrogation or extraction of involuntary confession--
Rex v. Teeples, 753 F.2d 840 (10th Cir.), cert. denied, 474 U.S. 967 (1985);
Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992).
Arrests of minorities --
Davis v. Frapolly, 747 F. Supp. 451 (N.D. Ill. 1989).
Selective enforcement of statute or regulation on the basis of race --
Mustfov v. Rice, 663 F. Supp. 1255 (N.D. Ill. 1987).
Deliberate denial of police protection on racial grounds --
Mody v. City of Hoboken, 959 F.2d 461 (3d Cir. 1992).
Federal Statutory Rights
Violation of a federal statute may also give rise to liability under 42 U.S. §1983 (and other civil rights remedies) if (1) the statute confers substantive rights, and is not merely a congressional declaration of policy; and (2) the statute does not expressly foreclose use of a civil rights remedy. Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981). A few of the federal statutes which will support a Section 1983 claim are:
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e) --
designed to ensure equal employment opportunities without discrimination on the basis of race, color, religion, sex or national origin
Individuals With Disabilities Education Act (20U.S.C. §§1400, et seq.) --
designed to ensure that handicapped children receive education appropriate to their needs
Religious Freedom Restoration Act (42 U.S.C. §2000bb) --
designed to limit government restrictions on the free exercise of religion
Vocational Rehabilitation Act (29 U.S.C. §§701, et seq.) --
guarantees equal opportunity of vocational rehabilitation and independent living for individuals with handicaps
What Standard Of Care Does The Defendant Owe To The Claimant?
This will vary, depending on the nature of the right allegedly deprived.
First Amendment
Although the deprivation of a First Amendment right need not be intentional, evidence of impermissible motivation (e.g., political) is ordinarily required.
Fourth Amendment
A "seizure" must be intentional in order to give rise to a Fourth Amendment deprivation. The "reasonableness" of that seizure (and, hence, its constitutionality) will be determined by an objective standard whereby the nature and quality of the intrusion is balanced against the importance of the governmental interest alleged to justify it.
Eighth Amendment
An inmate's claim based on inadequate medical care or the physical living conditions of his prison will be evaluated under the "deliberate indifference" standard. Inmate suicides are likewise analyzed under this standard. In the event of an uprising, however, prison officials are entitled to use force in a good faith effort to maintain or restore discipline, and will only be held liable for those injuries inflicted with malicious and sadistic intent.
Fourteenth Amendment
A claimant may recover for a denial of procedural due process upon a showing that the defendant intentionally denied that process to which the claimant was constitutionally due.
A claimant may recover for a substantive due process violation upon proof that the defendant acted recklessly or with callous indifference to the claimant's rights. Recovery, however, will only be permitted for a truly horrendous abuse of governmental power. Mere negligence, gross negligence or bad faith will not be sufficient. Finally, deliberate conduct that "shocks the conscience" or "offends the community's sense of fair play and decency" will support a substantive due process claim without proof of the specific liberty or property interest purportedly violated.
In the context of a pretrial detainee denied medical attention, the defendant may be held liable upon a showing of deliberate indifference or proof that the defendant's conduct was grossly negligent or so reckless as to be tantamount to a desire to inflict harm.
In order to recover under the Equal Protection Clause, a claimant must allege and prove "purposeful discrimination."
Did The Defendant Act Under Color Of State Law?
In order to recover under 42 U.S.C. §1983, the challenged conduct must be committed "under color of law." This means that the defendant must have acted in an official, government capacity, clothed with the authority of the state, in order to be held liable. Miga v. City of Holyoke, 398 Mass. 343 (1986). Since cities and towns derive their authority from the state, local government actors are deemed to act "under color of law" whenever they commit acts within their official capacity.
Unlawful Conduct
A police officer acts "under color of law," even if he violates state or local law, provided he acted within the apparent scope of his authority and office.
Monroe v. Pape, 365 U.S. 167 (1961).
Private Action
Acts committed in pursuit of personal interests are not "under color of law."
Cronin v. Town of Amesbury, 895 F. Supp. 375 (D. Mass.), aff'd, 81 F.3d 257 (1st Cir. 1995);
Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982).
This is true, even if the police officer is on duty at the time he commits such acts.
Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981).
Off-Duty
Off-duty police officer who invokes the real or apparent authority of the police department, or who engages in activity prescribed generally for police officers, may be acting "under color of law."
United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), cert. denied, 112 S.Ct. 1960 (1992).
Detail Officers
A police officer on private detail acts "under color of law."
Was The Defendant's Conduct The Cause Of Claimant's Constitutional Or Statutory Deprivation?
In order to recover under 42 U.S.C. §1983, the claimant must prove that the defendant's conduct was not only the cause in fact of his injuries, but also the proximate cause of his constitutional or statutory loss. Cause in fact requires an actual, tangible connection between defendant's conduct and claimant's resultant harm. Proximate cause, which is more elusive, requires proof that claimant's loss was reasonably foreseeable to the defendant.
The issue of proximate cause plays a substantial role in claims brought against municipal employers. A municipal employer cannot be held vicariously liable for the civil rights violations of its employees. Monell v. Dep't of Social Services, 436 U.S. 658 (1978). It can, however, be held directly liable to a claimant whose civil rights were violated as a direct result of a policy, custom or practice adopted or followed by the municipal employer. Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989). A finding of municipal liability, however, requires proof of an "affirmative link" between the conduct of the municipality and the constitutional or statutory deprivation. Rizzo v. Goode, 423 U.S. 362 (1976).
DEFENSES
Immunity
Absolute Immunity
Judges and prosecutors are absolutely immune from liability for damages arising from their official acts and decisions. Pierson v. Ray, 386 U.S. 547 (1967). They can, however, be sued for injunctive or declaratory relief. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 735 (1980). Absolute immunity likewise protects against malicious acts, provided such acts are performed as part of a judicial or prosecutorial function. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Police officers who carry out court mandates or who testify as witnesses in judicial proceedings may also enjoy absolute immunity. Jacobs v. Dujmovic, 752 F. Supp. 1516 (D. Colo. 1990), aff'd, 940 F.2d 1392 (10th Cir. 1991).
Qualified Immunity
A police officer is entitled to raise the defense of qualified immunity if, at the time he acted, (1) he was performing a discretionary function; and (2) he did not violate a clearly-established constitutional or statutory right of which a reasonable person in his position would have known. Anderson v. Creighton, 483 U.S. 635 (1987); Matthews v. Rakie, 38 Mass. App. Ct. 490, 493 (1995). In other words, if a police officer reasonably believed that his actions were lawful in light of clearly established law and based upon all information available to him at the time, then he shall be immune from liability. His reasonable belief, however, will be tested under an objective, rather than a subjective, standard. Davis v. Scherer, 468 U.S. 183, 191 (1984); Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26, 32 (1987), cert. denied, 485 U.S. 906 (1988).
Release
A release of liability given in exchange for the dropping of criminal charges may be upheld provided the release was voluntary. Town of Newton v. Rumery, 480 U.S. 386 (1987). The burden of proving the voluntariness of that agreement, however, rests with the defendant. Moreover, refusal to discharge a pretrial detainee from incarceration unless he executes a waiver of his civil rights constitutes a violation of the Fourth Amendment. Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987).
Statute of Limitations
Federal courts adjudicating civil rights claims under 42 U.S.C. §1983 must borrow the state statute of limitations applicable to personal injury actions under the law of the forum state. Thus, in Massachusetts, most Section 1983 actions must be brought within three years from the date the cause of action accrued. Street v. Vose, 936 F.2d 38 (1st Cir. 1991).
Res Judicata
A Chapter 258 action brought against police officers in state court, after such officers successfully prevailed in federal court under 42 U.S.C. §1983, is barred under the doctrine of res judicata. Hayes v. Town of Orleans, 39 Mass. App. Ct. 682 (1996).
RELIEF
Actual or Compensatory Damages
A victim unlawfully deprived of his or her civil rights is entitled to recover from the police officer responsible for such deprivation for the out-of-pocket expenses he or she sustained as a result of the defendant's conduct. This may include the victim's "specials"--her medical expenses, lost wages or lost earnings, and future loss of income--as well as her "general" damages--pain and suffering, emotional distress, humiliation, injury to reputation, etc. No damages may be awarded based on the abstract "value" or "importance" of the particular constitutional or statutory right infringed. Memphis Community Dist. v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978). In certain circumstances, however, when a plaintiff seeks compensation for an injury likely to have occurred but difficult to establish, some form of "presumed" damages may be appropriate. Nonetheless, such circumstances remain limited. Domegan v. Ponte, 972 F.2d 401, 417-18 (1st Cir. 1992).
Nominal Damages
When a plaintiff can establish that he was unlawfully deprived of a constitutional or federally-protected right as a result of a police officer's activities, but cannot prove actual harm, then he is entitled to an award of nominal damages ($1) from the jury.
Punitive Damages
Punitive damages may be awarded against a law enforcement official if he or she acted with "evil motive or intent," or with "reckless or callous indifference" to the claimant's civil rights. Smith v. Wade, 461 U.S. 30 (1983). A municipality, however, is immune from liability for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
Attorney's Fees
Under 42 U.S.C. Section 1988, the "prevailing party" in any action brought under Section 1983 may recover "a reasonable attorney's fee" as part of her costs. Moreover, this fee may include expert witness fees. The award of a reasonable attorney's fee is within the sound discretion of the trial court, although that discretion is not without limits. The prevailing party should ordinarily recover an attorney's fee "unless special circumstances would render such an award unjust." Blanchard v. Bergeron, 489 U.S. 87 (1989). A defendant, as the "prevailing party," may only recover attorney's fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even if not brought in subjective bad faith." Christianberg Garment Co. v. EEOC, 434 U.S. 4012 (1978).
INVESTIGATION
The defense counsel must take reasonable steps to develop whatever information and documentation may be necessary to identify and defeat the civil rights claim, to support all defenses available to his client, and to minimize or avoid any relief sought by the claimant. This information and documentation will come primarily from three sources: (1) the claimant; (2) the defendant; and (3) third parties.
Claimant
Narrative of event
Prior statements
Employment history and records
job application
insurance information
wage and salary information
fringe benefits
Medical history and records
bills
reports, summaries, correspondence, etc.
Psychiatric history and records
School records
Military history and records
Identities of witnesses
Accident or incident reports
Complaints
Prior claims or litigation
Photographs
Videotapes
Audiotapes
Newspaper clippings
Physical evidence
Past criminal history
Defendant
Narrative of event
Prior statements
Employment data and personnel files
training
discipline
performance reviews and evaluations
references, recommendations, citizen complaints or compliments
physical examinations
psychiatric examinations
citations and awards
Military history and records
Educational background
Physical evidence (vehicles, firearms, clothing, etc.)
Police policies, guidelines and directives
Photographs, maps, diagrams and sketches
Police reports
Witness statements
Investigative file
Court documents re: criminal proceedings
Videotapes of arrest or booking
Audiotapes
radio transmissions
telephone calls
Dispatch log
Internal affairs investigation
Warrants and affidavits submitted in support
Mug shots
Correspondence and materials from District Attorney
Medical records of injured officers
Injury reports or conveyance slips describing condition of claimant
Newspaper clippings
Third Parties
Contact should be made with any third party who may have knowledge or information regarding the incident, including:
District Attorney's Office
Massachusetts State Police Department
Any local Police Department or law enforcement agency that participated in incident
Fire Department
Other witnesses
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2404. Hobbs Act -- Under Color Of Official Right

In addition to the "wrongful use of actual or threatened force, violence, or fear," the Hobbs Act (18 U.S.C. § 1951) defines extortion in terms of "the obtaining of property from another, with his consent . . . under color of official right." In fact, the under color of official right aspect of the Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained in a recent opinion regarding the Hobbs Act,

"[a]t common law, extortion was an offense committed by a public official who took 'by color of his office' money that was not due to him for the performance of his official duties. . . . Extortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe.'" Evans v. United States, 504 U.S. 255 (1992).
In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently held that "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." While the definition of extortion under the Hobbs Act with regard to force, violence or fear requires the obtaining of property from another with his consent induced by these means, the under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that "the coercive element is provided by the public office itself." Evans v. United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) ("[t]he public officer's misuse of his office supplies the necessary element of coercion . . . .").

This theory of extortion under color of official right has resulted in the successful prosecution of a wide range of officials, including those serving on the federal, state and local levels. For example: United States v. O'Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991) (police officer accepts payments from FBI agents posing as crooked auto parts dealers); United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in Department of Commerce accepts payments to influence ruling); United States v. Spitler, 800 F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building contractor); United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city prosecutors accept money for not prosecuting drunk drivers); United States v. Greenough, 782 F.2d 1556 (11th Cir. 1986) (city commissioner accepts money for awarding city concession); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986) (judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and local officials and that prosecution of federal official for extortion would have to be exclusively brought under 18 U.S.C. §872: extortion by officers and employees of the United States. The court found that the government could seek a charge under whichever of these two overlapping statutes it thought appropriate. Moreover, "it is not a defense to a charge of extortion under color of official right that the defendant could also have been convicted of bribery." Evans v. United States, 504 U.S. 255 (1992).

GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a public official trading his/her official actions in a area in which he/she has actual authority in exchange for the payment of money.

Some cases under certain fact situations, however, have extended the statute further. For example:

Some courts have held that a Hobbs Act violation does not require that the public official have de jure power to perform any official act paid for as long as it was reasonable to believe that he/she had the de facto power to perform the requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989) (victim reasonably believed state senator had the ability to impact a local business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (public official can extort money for permit beyond control of his office, so long as victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974).
Most courts have held that a Hobbs Act violation does not require that the public official be the recipient of the benefit of the extortion, and that a Hobbs Act case exists where the corpus of the corrupt payment went to a third party. However, consistent with the federal offenses of bribery and gratuities under 18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the corpus of the corrupt payment inures to the benefit of a person or entity other than the public official most courts have also required proof of a quid pro quo understanding between the private corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) ("a Hobbs Act prosecution is not defeated simply because the extorter transmitted the extorted money to a third party."); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (insurance agency made kickbacks to brokers selected by political leader of town); United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981); United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v. Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff'd, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign contribution to a third party campaign organization was insufficient to support a Hobbs Act conviction absent evidence of a quid pro quo).
Some courts have held that the Hobbs Act can be applied to past or future public officials, as well as to ones who presently occupy a public office at the time the corrupt payment occurs. See United States v. Meyers, 529 F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered affirmatively the question "whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect commerce by extortion induced under color of official right during a time frame beginning before the election but not ending until after the candidates have obtained public office."); United States v. Lena, 497 F.Supp. 1352, 1359 (W.D. Pa. 1980), aff'd mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp. 1232, 1235 (M.D.Pa. 1978), aff'd mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978).
Some courts have held that private persons who are not themselves public officials can be convicted under this provision if they caused public officials to perform official acts in return for payments to the non-public official. United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (court upheld conviction of head of local Republican Party under color of official right where defendant could be said to have caused, under 18 U.S.C. §2(b), public officials to induce a third party to pay out money); see United States v. Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney's conviction of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777 F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.), aff'd mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir. 1991) ("we believe that, as a general matter and with caveats as suggested here, proceeding against private citizens on an 'official rights' theory is inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of the actual 'control' that citizen purports to maintain over governmental activity.").
Some courts have also held that private individuals who make payments to a public official can be charged under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is truly the instigator of the transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed for aiding and abetting extortion under color of official right even though defendant, who paid kickbacks from corporate coffers, was an officer of the victim corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d 814, 823-24 (2d Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health inspectors had no stake in the conspiracy and was not promoting the outcome).
Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the introduction at trial of evidence of the defendant's legislative acts. The Supreme Court has held that in such a prosecution a speech or debate type privilege for state legislators cannot be made applicable through Fed.R.Evid. 501. The Court said such privilege is not required by separation of powers considerations or by principles of comity, the two rationales underlying the Speech or Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360, 368-74 (1980).
CAVEAT: The Hobbs Act and Campaign Contributions. The Supreme Court has held that, when an allegedly corrupt payment masquerades as a campaign contribution, and when there is no evidence that the corpus of the "contribution" inured to the personal benefit of the public officer in question or was a product of force or duress, the Hobbs Act requires proof of a quid pro quo agreement between the contributor and the public officer. McCormick v. United States, 500 U.S. 257 (1991). However, the Court has also held that proof that a quid pro quo agreement existed in a corruption case brought under the Hobbs Act may be proven circumstantially. Evans v. United States, 504 U.S. 255 (1992). This interpretation of the dimensions of the hobbs Act in corruption scenarios is consistent with the parameters of the facts needed to prove the federal crimes of bribery and gratuities under 18 U.S.C. § 201. See United States v. Brewster, 50-6 F.2d 62 (D.C. Cir. 1972), 9 U.S.A.M. §§ 85.101 through 85.105, supra.

CAVEAT: The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to public corruption scenarios that lack evidence of actual "extortionate" duress, some courts have interpreted the Hobbs Act very strictly to require proof of a quid pro quo relationship between the private and the public parties to the transaction, even where the corpus of the payment inured to the personal benefit of the public official. See United States v. Martinez, 14 F.3d. 543 (11th Cir. 1994)(Hobbs Act did not apply to pattern of in-kind payments given personally to Florida mayor in the absence of evidence of a quid pro quo relationship between the mayor and alleged private corrupter); United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)(same); United States v. Montoya, 945 F.2d 1086 (9th Cir. 1991)(same); contra United States v. Brandford, 33 F.3d 685 (6th Cir. 1994)(Hobbs Act does not require proof of quid pro quo where corpus of corrupt payment inured to the personal benefit of public officer). In addition, some courts require that corruption cases brought under the "color of official right" clause of the Hobbs Act be accompanied by proof that the public official induced the payment. See Montoya, supra.

At the very least, the courts will probably not extend the "color of official right" clause of the Hobbs Act beyond the parameters of crimes of bribery and gratuities in relation to federal officials that are described in 18 U.S.C. § 201. See United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), 9 U.S.A.M. §§ 85.101 through 85.105, supra. This means that where the corpus of the alleged corrupt payment passed to someone or something other than the public official personally (including those where it passed to a political committee), the Hobbs Act probably does not apply unless there is also evidence of a quid pro quo. And even then, some Circuits, such as the Ninth, require additional proof that the payment was induced by the public official.

PRACTICE TIP: The Public Integrity Section possesses considerable expertise in using the Hobbs Act to prosecute public corruption. While not required, AUSAs are strongly urged to consult with the Public Integrity Section in the investigation and prosecution of corruption cases under this statutory theory. Public Integrity can be reached at 202-514-1412, or by fax at 202-514-3003.

[cited in USAM 9-131.010]

‹ 2403. Hobbs Act -- Extortion By Force, Violence, Or Fearup2405. Form Indictment -- Interference With Commerce By Extortion Consisting Of Threats, Violence Or Fear (18 U.S.C. 1951)

2404. Hobbs Act -- Under Color Of Official Right

In addition to the "wrongful use of actual or threatened force, violence, or fear," the Hobbs Act (18 U.S.C. § 1951) defines extortion in terms of "the obtaining of property from another, with his consent . . . under color of official right." In fact, the under color of official right aspect of the Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained in a recent opinion regarding the Hobbs Act,

"[a]t common law, extortion was an offense committed by a public official who took 'by color of his office' money that was not due to him for the performance of his official duties. . . . Extortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe.'" Evans v. United States, 504 U.S. 255 (1992).
In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently held that "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." While the definition of extortion under the Hobbs Act with regard to force, violence or fear requires the obtaining of property from another with his consent induced by these means, the under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that "the coercive element is provided by the public office itself." Evans v. United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) ("[t]he public officer's misuse of his office supplies the necessary element of coercion . . . .").

This theory of extortion under color of official right has resulted in the successful prosecution of a wide range of officials, including those serving on the federal, state and local levels. For example: United States v. O'Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991) (police officer accepts payments from FBI agents posing as crooked auto parts dealers); United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in Department of Commerce accepts payments to influence ruling); United States v. Spitler, 800 F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building contractor); United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city prosecutors accept money for not prosecuting drunk drivers); United States v. Greenough, 782 F.2d 1556 (11th Cir. 1986) (city commissioner accepts money for awarding city concession); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986) (judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and local officials and that prosecution of federal official for extortion would have to be exclusively brought under 18 U.S.C. §872: extortion by officers and employees of the United States. The court found that the government could seek a charge under whichever of these two overlapping statutes it thought appropriate. Moreover, "it is not a defense to a charge of extortion under color of official right that the defendant could also have been convicted of bribery." Evans v. United States, 504 U.S. 255 (1992).

GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a public official trading his/her official actions in a area in which he/she has actual authority in exchange for the payment of money.

Some cases under certain fact situations, however, have extended the statute further. For example:

Some courts have held that a Hobbs Act violation does not require that the public official have de jure power to perform any official act paid for as long as it was reasonable to believe that he/she had the de facto power to perform the requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989) (victim reasonably believed state senator had the ability to impact a local business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (public official can extort money for permit beyond control of his office, so long as victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974).
Most courts have held that a Hobbs Act violation does not require that the public official be the recipient of the benefit of the extortion, and that a Hobbs Act case exists where the corpus of the corrupt payment went to a third party. However, consistent with the federal offenses of bribery and gratuities under 18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the corpus of the corrupt payment inures to the benefit of a person or entity other than the public official most courts have also required proof of a quid pro quo understanding between the private corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) ("a Hobbs Act prosecution is not defeated simply because the extorter transmitted the extorted money to a third party."); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (insurance agency made kickbacks to brokers selected by political leader of town); United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981); United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v. Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff'd, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign contribution to a third party campaign organization was insufficient to support a Hobbs Act conviction absent evidence of a quid pro quo).
Some courts have held that the Hobbs Act can be applied to past or future public officials, as well as to ones who presently occupy a public office at the time the corrupt payment occurs. See United States v. Meyers, 529 F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered affirmatively the question "whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect commerce by extortion induced under color of official right during a time frame beginning before the election but not ending until after the candidates have obtained public office."); United States v. Lena, 497 F.Supp. 1352, 1359 (W.D. Pa. 1980), aff'd mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp. 1232, 1235 (M.D.Pa. 1978), aff'd mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978).
Some courts have held that private persons who are not themselves public officials can be convicted under this provision if they caused public officials to perform official acts in return for payments to the non-public official. United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (court upheld conviction of head of local Republican Party under color of official right where defendant could be said to have caused, under 18 U.S.C. §2(b), public officials to induce a third party to pay out money); see United States v. Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney's conviction of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777 F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.), aff'd mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir. 1991) ("we believe that, as a general matter and with caveats as suggested here, proceeding against private citizens on an 'official rights' theory is inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of the actual 'control' that citizen purports to maintain over governmental activity.").
Some courts have also held that private individuals who make payments to a public official can be charged under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is truly the instigator of the transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed for aiding and abetting extortion under color of official right even though defendant, who paid kickbacks from corporate coffers, was an officer of the victim corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d 814, 823-24 (2d Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health inspectors had no stake in the conspiracy and was not promoting the outcome).
Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the introduction at trial of evidence of the defendant's legislative acts. The Supreme Court has held that in such a prosecution a speech or debate type privilege for state legislators cannot be made applicable through Fed.R.Evid. 501. The Court said such privilege is not required by separation of powers considerations or by principles of comity, the two rationales underlying the Speech or Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360, 368-74 (1980).
CAVEAT: The Hobbs Act and Campaign Contributions. The Supreme Court has held that, when an allegedly corrupt payment masquerades as a campaign contribution, and when there is no evidence that the corpus of the "contribution" inured to the personal benefit of the public officer in question or was a product of force or duress, the Hobbs Act requires proof of a quid pro quo agreement between the contributor and the public officer. McCormick v. United States, 500 U.S. 257 (1991). However, the Court has also held that proof that a quid pro quo agreement existed in a corruption case brought under the Hobbs Act may be proven circumstantially. Evans v. United States, 504 U.S. 255 (1992). This interpretation of the dimensions of the hobbs Act in corruption scenarios is consistent with the parameters of the facts needed to prove the federal crimes of bribery and gratuities under 18 U.S.C. § 201. See United States v. Brewster, 50-6 F.2d 62 (D.C. Cir. 1972), 9 U.S.A.M. §§ 85.101 through 85.105, supra.

CAVEAT: The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to public corruption scenarios that lack evidence of actual "extortionate" duress, some courts have interpreted the Hobbs Act very strictly to require proof of a quid pro quo relationship between the private and the public parties to the transaction, even where the corpus of the payment inured to the personal benefit of the public official. See United States v. Martinez, 14 F.3d. 543 (11th Cir. 1994)(Hobbs Act did not apply to pattern of in-kind payments given personally to Florida mayor in the absence of evidence of a quid pro quo relationship between the mayor and alleged private corrupter); United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)(same); United States v. Montoya, 945 F.2d 1086 (9th Cir. 1991)(same); contra United States v. Brandford, 33 F.3d 685 (6th Cir. 1994)(Hobbs Act does not require proof of quid pro quo where corpus of corrupt payment inured to the personal benefit of public officer). In addition, some courts require that corruption cases brought under the "color of official right" clause of the Hobbs Act be accompanied by proof that the public official induced the payment. See Montoya, supra.

At the very least, the courts will probably not extend the "color of official right" clause of the Hobbs Act beyond the parameters of crimes of bribery and gratuities in relation to federal officials that are described in 18 U.S.C. § 201. See United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), 9 U.S.A.M. §§ 85.101 through 85.105, supra. This means that where the corpus of the alleged corrupt payment passed to someone or something other than the public official personally (including those where it passed to a political committee), the Hobbs Act probably does not apply unless there is also evidence of a quid pro quo. And even then, some Circuits, such as the Ninth, require additional proof that the payment was induced by the public official.

PRACTICE TIP: The Public Integrity Section possesses considerable expertise in using the Hobbs Act to prosecute public corruption. While not required, AUSAs are strongly urged to consult with the Public Integrity Section in the investigation and prosecution of corruption cases under this statutory theory. Public Integrity can be reached at 202-514-1412, or by fax at 202-514-3003.

[cited in USAM 9-131.010]

‹ 2403. Hobbs Act -- Extortion By Force, Violence, Or Fearup2405. Form Indictment -- Interference With Commerce By Extortion Consisting Of Threats, Violence Or Fear (18 U.S.C. 1951)

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