Here’s one from the “now I’ve seen everything” department.
In United States v. Torres-Sobrado, — F.Supp.2d –, 2010 WL 3290958 (D. Puerto Rico 2010), handed down last week, twelve defendants allegedly dressed up as police officers and pulled over motorists for traffic violations. One of the twelve was an actual police officer, but apparently the rest were not. They would then look for drugs, and when they found drugs they would keep the drugs and later sell them. In one instance, they specifically targeted a man who they knew would be traveling with 14 grams of cocaine. One of the stops led to a carjacking, and the driver died: A range of criminal charges were filed. One of the charges accuses the defendants of violating the driver’s Fourth Amendment rights by stopping him under color of law and then seizing his cocaine.
In last week’s decision, the defendants moved to dismiss this count of the indictment as a matter of law. They made two arguments. First, the defendants argued that they are not real police officers, and therefore are not state actors under Fourth Amendment law. Second, they argued that even if they were state actors, they did not violate the Fourth Amendment because their stop and seizure complied with Fourth Amendment standards. The stop was based on probable cause, the drugs were in plain view, etc.
Judge Besosa started with the second argument, and I think it’s fair to say that he found it unpersuasive:
The argument[] . . . is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.
(emphasis in original).
Judge Besosa then rejected the first argument, that the defendants were not acting as state actors for Fourth Amendment purposes:
As to the defendants argument that they did not act under color of state law because they are private citizens and because there was only one state actor involved in the indictment alleged, the case law is clear. The Supreme Court has held that to act under color of state law “does not require that the defendant be an officer of the State,” and that “[p]rivate persons, jointly engaged with state officials in the challenged action, are acting [sic] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts have also ruled that “[t]he color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty” as is the case here. U.S. v. Giordano, 442 F.3d 30, 43 (2nd Cir.2006); See U.S. v. Walsh, 194 F.3d 37, 51 (“The relevant question … is not whether the actual abuse was part of the official’s duties but, rather, whether the abuse was ‘made possible only because the wrongdoer is clothed with the authority of state law.’ ” (quoting U.S. v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). In United States v. McClean, 528 F.2d 1250 (2d Cir.1976), the Second Circuit Court of Appeals held that police officers acted under color of law when they stole proceeds of drug sales from the suspects in their investigations in violation of section 242.
The United States accused the defendants of aiding and abetting others to violate Andrades’s right to be free from unreasonable searches and seizures by submitting him to a staged traffic stop in which, literally, they wore the colors of the state. As the Supreme Court once stated, “[i]t is clear that under ‘color’ of law means under ‘pretense’ of law” and, thus, “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” There is no doubt that Count Six notifies the defendants adequately of the allegations against them pursuant to section 242 and states adequately the elements of that charge.
This is a very strange case, but I’m not entirely sure Judge Besosa is right. I’d want to know more facts to be able to know whether the defendants were state actors for Fourth Amendment purposes. The First Circuit uses a three factor test to determine if a private party acts as a government agent. Courts look at “the extent of the government’s role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests.” United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997). I’d need to know more facts to know how these factors should apply, but it’s hardly obvious that they render the entire group state actors.
It’s true that the Second Circuit held that real cops who did something similar were state actors in McLean, but in that case the defendants were real cops who were on-duty. Here 11 of the 12 defendants are just criminals dressed up as cops; while wearing the uniform creates the impression of a state actor, I’m not aware of any cases indicating that appearance trumps reality in determining who is a Fourth Amendment state actor. I’m not sure of the right answer here, but I don’t think the answer is as simple as Judge Besosa suggests.
Similarly, if we accept that the defendants are state actors, I’m not sure why their alleged compliance with Fourth Amendment rules shouldn’t be a defense. Judge Besosa calls this argument “stunningly irrational,” but that’s because he assumes that the key issue is the defendants’ intent: “Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit.” But under Whren v. United States, subjective intent in making a stop and seizure is irrelevant. Maybe there is some outer limit to that principle that makes a “fake” traffic stop different, but it’s not obvious to me. So if the defendants really are state actors, then it’s not clear that their argument is so “stunningly irrational.” I should add that this hinges on whether the steps actually did follow the Fourth Amendment, which is quite unclear from the short opinion: That should be an issue for trial, not pre-indictment dismissal.
Thanks to FourthAmendment.com for the link.
David Schwartz says:
Although I know it’s not the law, but I think a more reasonable rule would be that private actors can violate the fourth amendment if they search or seize unreasonably. Obviously, suppression would not be a remedy for this kind of 4A violation.
August 26, 2010, 8:16 pmJeff S. says:
I think that the civil rights violation is the least of their problems.
August 26, 2010, 8:34 pmChris says:
I see murder, kidnapping, theft, drug possession, and impersonating a police officer, but violating 4th amendment rights is a real stretch.
August 26, 2010, 8:40 pmAnon Y. Mous says:
I certainly think it’s just for those that pretend to be state actors to suffer the same consequences of their actions as if they were in fact state actors. If we are going to enhance the punishment for a cop that uses his badge and uniform to assist him in carrying out a crime, why would we not want to treat an impostor in the same way?
August 26, 2010, 8:57 pmOrin Kerr says:
Anon Y. Mous,
I did not ask about whether the conduct should be a crime — it should be. I asked whether it violated a particular part of the U.S. Constitution.
August 26, 2010, 9:15 pmAnon Y. Mous says:
The difference is that they were not carrying out a state function, they were merely pretending to. Although law enforcement is permitted to use a pretext to go after something else, the pretext still has to be something that they can legitimately use. Since fake law enforcement officers have no legitimate law enforcement functions, even their pretextual stop is illegitimate.
August 26, 2010, 9:15 pmDan says:
My main question is this: how much does the common law of agency influences state action doctrine, and whether it differs depending on the criminal vs. civil context?. Under common law agency principles, I would think a court would find that apparent authority made them liable for any actions taken under false pretenses of state authority
August 26, 2010, 9:17 pmLaird says:
What’s the point of the 4th Amendment claim? Or, more precisely, what is the remedy sought if the claim is allowed? Suppression? Of what? And when did violation of someone’s 4th Amendment rights become a criminal matter? It would be a real travesty if the state were somehow dragged into this and found to have some sort of culpability for the actions of pretend cops, but isn’t that a possible outcome if the 4A charge were permitted to stand? Aren’t there more than enough substantive charges here that the court shouldn’t have to waste time on manufactured ones?
August 26, 2010, 9:19 pmAnon Y. Mous says:
Well, of course the constitution only restricts government action. However, they were not charged with violating the constitution, they were charged with a specific crime. A crime that applies to state actors who violate the constitution. Whom they were impersonating.
I hope that clears everything up. :)
August 26, 2010, 9:24 pmgeorge weiss says:
good point about more facts on whether they were state actors. particularly if they acted with one person who was a state actor-that could indicate some sort of agency that would make them state actors.
also, with regard to the second point, the Whren argument also struck me as i read the judge’s decision.
August 26, 2010, 9:26 pmAnon Y. Mous says:
I don’t see a link. Can you put up the link you are referring to?
August 26, 2010, 9:34 pmFub says:
So should they be pretend-suspended with full pay, then pretend-determined by pretend-internal investigation to have committed no violation of anyone’s pretend-rights, then pretend-promoted?
August 26, 2010, 9:35 pmOrin Kerr says:
The statute was first enacted in 1866 and modified during the 1860s and 1870s, but it wouldn’t apply to the Fourth Amendment until 1949 when the Fourth Amendment was first applied to the states.
See generally Screws v. United States (1945) (talking about the history of what became 18 U.S.C. 242).
(edited by ok)
August 26, 2010, 9:45 pmJoseph Slater says:
Orin:
You seem to be assuming that this “Judge Besosa” is in fact a real judge who conducted a real trial. But are you sure he isn’t some criminal who, along with a bunch of friends (one of whom is an actual court clerk), are pretending to run a real courtroom, but in fact are really simply keeping drugs submitted as evidence and later selling them? And if that’s the case, would that create some justiciable issues under Article III?
August 26, 2010, 9:51 pmAaron says:
Amendment IV:
The actual text doesn’t just say the right is to be secure against government actors. It says “secure” period.
The statute requires that the violator be “under color of law”. In my mind, that means acting as if you were an agent, not being an agent.
And hey, it covers rights secured and protected by mere laws, too.
August 26, 2010, 10:09 pmDAve says:
Fortunately for all concerned didn’t the 9th just rule that the wearing of fraudulent uniforms is protected free speech (the Stolen Valor case)?
August 26, 2010, 10:10 pmIf a private citizen allows another private citizen acting lawfully to search and confiscate his property where’s the violation?
*Thank God I didn’t become a lawyer-*
Stormy Dragon says:
I think making the imposters liable for the same penalties as real cops would have serves a public policy purpose as the alternative increases the likelihood of confrontations between the public and real police officers (e.g “Oh yeah? Prove you’re an officer!”)
August 26, 2010, 10:35 pmwhit says:
i guess if it was determined to be a violation , then the classic exception to double jeapardy rule would apply and let both the feds AND the state get a crack at prosecuting them for the same crime (*a la rodney king trial). (and yes, it WAS the same crime… just with a different name)
August 26, 2010, 10:38 pmTim S says:
I think the act of falsely dressing up as a police officer is a distraction regarding the existence of the required state-action under section 242. The allegations against the actual police officer are a violation of section 242. Under an aiding and abetting theory, the non-officers helped the police officer commit the crime, right? Imagine if the officer’s wife had asked to borrow some wooden police road-blocks, and lied to say that they were for a block party. She hasn’t dressed up as a police officer, but assuming the traffic stops occur as alleged, she’s aiding and abetting the actual police officer as he exceeds his authority, in violation of 242.
August 26, 2010, 11:52 pmJay says:
It’s a criminal statute that makes it an offense to deprive someone of their civil rights under color of law. The civil right in question here just happens to be the Fourth Amendment.
August 27, 2010, 12:16 amORID says:
I know it’s not the same area of law, so I’m not sure if this means anything.
August 27, 2010, 12:36 amIsn’t there a parallel with Bivens actions against contractors and other non-government actors? I think the Supreme Court ruled on this in Malesko?
James Gibson says:
Forget the impersonating of an officer. If the 9th saw fit to declare unconstitutional a law prohibiting a person from saying they were a soldier when they weren’t, then any law making it illegal to represent yourself as a cop is also a violation of ones freedom of speech.
August 27, 2010, 1:42 amJohn Herbison says:
Does Puerto Rico recognize the validity of citizen arrests? If so, could color of law apply thereby?
August 27, 2010, 2:12 amwhit says:
in my state, it is only illegal to impersonate a cop IF you try to do some official action – pull somebody over, try to stop them (terry stop) etc. merely dressing as a cop, or claiming to be a cop is entirely legal’
i think that would pass any speech issues under the 1st
August 27, 2010, 2:14 amDude says:
Joseph Slater has the best take. If he is a real person
August 27, 2010, 3:19 amGuy says:
The whole theory of suits for violations of civil rights (Ex Parte Young etc.) is that you’re not suing the state, you’re suing the individual who is acting under color of law (but, of course, not actual legal authority, because there can be no authority to violate the Constitution) to achieve an unconstitutional result. Assuming the theory is the same for criminal liability, I don’t see why they wouldn’t be state actors. That having been said, it seems to me that their liability should be the same as a real police officer who engaged in the same conduct. This is largely academic, of course, since they violated a metric buttload of other laws anyway.
August 27, 2010, 3:36 amRodger Lodger says:
Today I’m going to sign a presidential Executive Order. Actually, I’m not president, and the order goes beyond Art. II/statutory powers anyway, so it’s undoubtedly unconstitutional.
August 27, 2010, 6:02 amStig says:
I’m not a lawyer, but it strikes me that this criticism isn’t as exactly phrased as it could be:
This is a very strange case, but I’m not entirely sure Judge Besosa is right. I’d want to know more facts to be able to know whether the defendants were state actors for Fourth Amendment purposes.
As I read the extracts posted here, Besosa wasn’t arguing that the private citizens counted as state actors. He agreed with them that they weren’t but argued that it didn’t matter for the purposes of whether they were acting under ‘color of law’:
As to the defendants argument that they did not act under color of state law because they are private citizens and because there was only one state actor involved in the indictment alleged, the case law is clear. The Supreme Court has held that to act under color of state law “does not require that the defendant be an officer of the State,” and that “[p]rivate persons, jointly engaged with state officials in the challenged action, are acting [sic] ‘under color’ of law for purposes of § 1983 actions.”
August 27, 2010, 7:03 amDavid M. Nieporent says:
Wins the thread.
August 27, 2010, 7:06 amJohn Davies says:
If this is allowed, could the city of Chicago be prosecuted for violations of the Second Amendment? If so, would the mayor and city council go to jail?
And are there sentencing guidelines available for violating each amendment?
I don’t think the Bill or Rights was written that way.
August 27, 2010, 7:55 amJim M says:
Acting as if you were a police officer when you are not is a felony. Using that guise to arrest people is false imprisonment. Stealing is stealing. What does the 4th have to do with it?
August 27, 2010, 8:13 amPersonFromPorlock says:
18 USC 241 & 242 seem to be enforced only when doing so furthers some federal policy. So the answer to your question is probably “Yes, if the feds ever take the RKBA seriously.”
Don’t hold yer breath.
August 27, 2010, 8:13 amUh, Clem says:
Hey, if the lst Amendment says I can falsely claim to be a Congressional Medal of Honor recipient and use that fraudulent status to cadge free banquet meals, why can’t I wear a cop suit in order to shake down drug dealers?
August 27, 2010, 9:06 amJustin says:
Orin’s analysis is spot on. I agree that the real question is based on the one real cop, the 1st Circuit test, and the possibility of A&A/conspiracy liability.
August 27, 2010, 9:37 amAtomic says:
Re: John Herbison and citizen arrests — Do “Posse” and citizen deputy laws still exist? Once upon a time I was taught that the 2d Amendment supported law enforcement through access to a posse to help the police deal with emergencies.
Presume a legitimate police officer acting through time urgency (say, in a remote area) recruited local citizens to form an armed posse and performed traffic stops to intercept what the officer expects to be armed suspects transporting drugs. During the stop, one of the citizen deputies violates the 4th Amendment.
Then what?
August 27, 2010, 9:37 amSmooth, like a Rhapsody says:
I didn’t see a link to the decision, so I am guessing here:
Could this not be a (parallel)civil 1983 action against the fake cops?; and if there is a 1983 action against the real cop (the remedy for which is $$$), is there a way to rope the fake cops into the same 1983 action via conspiracy or agency theory?
If the question, though, is: Can a private citizen commit a “1983″ crime?; then the answer is “no”. “Color” means “aegis”, not “pretense”.
August 27, 2010, 9:42 amShelbyC says:
Well, in this case the state (territory) violated the fourth amendment by making people believe that they were legally compelled to follow the instructions of people who appeared to be police officers. And I’d imagine that the enforcement clause of the 14th would give the feds sufficient power to prevent this type of violation by punishing private citizens for detaining people under false color of authority.
And even if the subjective intent of the cops doesn’t matter, their subjective belief about whether or not they are legally authorized to detain people in a particular situation surley does.
August 27, 2010, 10:05 amShelbyC says:
Well, I just realized that since this is Peurto Rico my above comment is a little off wrt the 14th amendment, but the point still stands; the state action is the requirement that people obey police officers.
August 27, 2010, 10:15 amSmooth, like a Rhapsody says:
ShelbyC:
There is no state action; the 4th amendment does not apply to private actors, nothwithstanding what the victim might believe the official capacity of the perpetrator to be; and it does not contain a right not to be gulled.
August 27, 2010, 10:23 amSmooth, like a Rhapsody says:
A thousand thanks to Orin for reminding us all of the case involving my favorite litigant name of all time: Sheriff Claude Screws, of Georgia. (If his first name had been “Buford” it would have been perfect.)
August 27, 2010, 10:29 amgeorg felis says:
(from Atomic)
Then the State has control of the deputy (by proxy thru the police officer) and it may be a legit violation.
Second hypothetical: Suppose it becomes routine for groups of criminals to dress as police officers and do traffic stops for drug confiscation/shakedowns nationwide. And the State finds it convenient and ignores them unless something bad happens (carjacking, murder, they hit up a politician). Can the State be held liable for *failing* to keep these known criminals from their activity, i.e. the State has de facto control over these thugs.
August 27, 2010, 10:32 amPersonFromPorlock says:
Could home invaders who shout “police!” as they break in (this does happen) be considered as acting “under color of law?”
August 27, 2010, 10:46 amUrso says:
Apparent authority only attaches where the principal leads a third party to believe that another person is his mandatary/agent. It does not apply where the mandatary/agent leads a 3P to believe he is acting for a certain principal.
Say I go to Brooks Brothers, buy $3,000 worth of clothes, and tell the clerk “charge this to Dan’s account – I’m authorized to buy these clothes on his behalf.” (pretend the clerk believes me). Obviously you wouldn’t be liable for this. But if you tell the clerk “Urso is my agent” and I later buy clothes and charge them to your account, you may be liable even if I was not actually working on your behalf at the time.
August 27, 2010, 10:50 amSeth S. says:
The strongest Fourth Amendment claim, I think, would be that the 11 civilians were acting under the direction of the officer, or that he effectively delegated some of his state authority to them for the purpose of carrying out an scheme that was a clear abuse of that authority.
I’m interested in whether this would be expanded to private security guards, especially in up-scale gated communities. They are not pretending to be police exactly, but they are certainly conducting typical state functions (they often patrol an area, respond to home alarms, etc). Since they are conducting state function far more legitimate than a dope-rolling scheme, could they be state actors for the purpose of the Fourth Amendment? If a private security guard searched a vehicle conducted a traffic stop (which they would almost always lack the authority to do under state law), would it be an unlawful detention for both the purposes of criminal law and Fourth Amendment?
August 27, 2010, 10:55 amSeth S. says:
The strongest Fourth Amendment claim, I think, would be that the 11 civilians were acting under the direction of the officer, or that he effectively delegated some of his state authority to them for the purpose of carrying out an scheme that was a clear abuse of that authority.
I’m interested in whether this would be expanded to private security guards, especially in up-scale gated communities. They are not pretending to be police exactly, but they are certainly conducting typical state functions (they often patrol an area, respond to home alarms, etc). Since they are conducting state function far more legitimate than a dope-rolling scheme, could they be state actors for the purpose of the Fourth Amendment? If a private security guard searched a vehicle conducted a traffic stop (which they would almost always lack the authority to do under state law), would it be an unlawful detention for both the purposes of criminal law and Fourth Amendment?
August 27, 2010, 10:55 amDon Meaker says:
Per the recent overturning of the Stolen Valor law, they were exercising their free speech rights, to lie and have people think that this was a legal stop…. They were just sadly misunderstood individuals, for which we can hold them in contempt, but no charge can be filed.
August 27, 2010, 11:01 amSean M. says:
Orin,
I’m not sure I understand your analysis correctly, but as I read the opinion, the Government isn’t claiming that all twelve are state actors. Instead, the Government is claiming that the actual officer is a state actor (which seems clear given that, as the opinion notes, the question is not whether he is engaged in his official duties but rather if he is using his cloak of state authority to violate civil rights) and that the other eleven are liable for the substantive crime under the general accomplice liability statute of 18 USC 2.
Thus, the question of whether there is a state actor only applies to the officer. The others are accomplices to the officer’s crime whether or not they are, independently, state actors, and are thus liable for the crime under accomplice liability.
(Other commenters, especially Tim S, suggested this up-thread, I just wanted to spin it out a bit).
But I may be missing something in your analysis. Am I?
August 27, 2010, 11:15 amDennis N says:
You can claim to be a CMOH winner, but cadging the meals amounts to fraud and should be prosecutable.
In practicality, sentence should be carried out by a squad of veterans, out behind the dumpster.
August 27, 2010, 11:23 amWilliam says:
My question. If laws against pretending to be a war hero are unconstitutional, are laws about pretending to be a police officer also?
August 27, 2010, 11:25 amDennis N says:
The Stolen Valor ruling is nowhere near that broad. Impersonating a medal winner was found to harm no one. Ignoring for this argument, whether it does or not, impersonating a cop for the purpose or committing a crime cannot be so claimed.
Carrying the soldier analogy farther, the Court never suggested that it was permissible to don the Uniform and use it to commit a substantive deception. I doubt there is much case law on that, as actually pretending to be a military person for a practical purpose (as opposed to say, showing off at a party) is more difficult than it looks; the uniform alone doesn’t buy you much credibility.
August 27, 2010, 11:33 amUrso says:
I’m assuming all the posters who keep bringing this up 1) aren’t lawyers and 2) haven’t read the rest of the comments.
August 27, 2010, 11:39 amDennis N says:
Even the statutes against impersonating a police officer seem to be viewed selectively, at least in the field. There is a whole population of uniform fetishists. No one is raiding International Mr. Leather, where there may be hundreds of guys in police uniforms, some of them quite authentic. I suspect they are in no trouble at the restaurant across from the hotel. But try to make a traffic stop and the law changes dramatically. If one is busted “out of context,” the case could get interesting, as intent is unclear.
August 27, 2010, 11:47 amMastro says:
This is just a good argument to cut Puerto Rico lose. Its been a lawless mess since the Spanish set it up.
August 27, 2010, 11:47 amMartinned says:
That would be my take as well…
August 27, 2010, 11:49 amNickM says:
Or they’re just snarky.
Nick
August 27, 2010, 11:51 amMartinned says:
I’d imagine those commenters know that their remarks aren’t relevant, but are simply taking the opportunity to voice (again) their displeasure with the 9th circuit’s opinion. For the record, I also think it is stupid that Congress apparently can’t make a law punishing knowing falsehoods. (Assuming all other requirements are met, etc.) By analogy, I think state legislatures could make it a crime to dress up as a cop, if they wanted to. (As long as the law only covers uniforms that are sufficiently realistic. Wearing a uniform that doesn’t actually resemble a real one isn’t a “falsehood”.) It’s just that, imho, neither that possibility nor these “traffic stops” are a constitutional issue.
August 27, 2010, 11:56 amChris Travers says:
Does this mean that qualified immunity applies?
August 27, 2010, 12:07 pmSeth S. says:
To distinguish the Stolen Valor points from impersonation, many state statutes dealing with impersonation crimes refer to “acts,” not dress. See, e.g., Fla. Stat. Sec. 843.08 (“A person who falsely assumes . . . and takes upon himself or herself to act as such, or to require any other person to aid or assist him or her in a matter pertaining to the duty of any such officer, commits a felony of the third degree . . .”). Under this model, playing dress up isn’t criminalized and doesn’t run into the same perceived constitutional problem as the Stolen Valor Act.
Sean M., I thought the point was that the court found all twelve to be state actors because one of them was – they were “jointly engaged.” No?
August 27, 2010, 12:14 pmChris Travers says:
But doesn’t this seem to suggest that the key element here is that they were working with one actual police officer? Of none of them had been actual police officers this wouldn’t be under ‘color of law?’
August 27, 2010, 12:16 pmUrso says:
“Congress hereby finds that the support of strong and healthy marital relationships among Americans is vital to the continued growth of interstate commerce. Therefore, any person who willfully or knowingly misrepresents any fact to his or her spouse is is guilty of a crime punishable by not more than two years in jail.” We could call it the “does this dress make me look fat” law.
August 27, 2010, 12:38 pmSmooth, like a Rhapsody says:
!!!
August 27, 2010, 12:59 pmLarryA says:
But it’s the one where their lawyers can actually do something. All those billable hours have to go somewhere.
That’s still true under Texas law. However, for the justification to be valid the civilian must reasonably believe:
1. The officer is acting under legitimate authority.
2. The officer is performing a public duty.
Ripping off people fails both tests.
You’d have to check PR law to see how it applies there.
August 27, 2010, 1:36 pmGunPundit » Blog Archive says:
[...] Does Dressing Up as a Cop, Staging Fake Traffic Stops, Looking for Drugs, and then Keeping the Drugs… [...]
August 27, 2010, 1:44 pmohwilleke says:
If there is any way to act under color of state law without being a public employee, dressing up as a cop and acting like one while conspiring with a real cop has to be pretty darned close. I suspect that the cop even has statutory power under Puerto Rican law to deputize private citizens temporarily to act as his posse. Indeed, presumably, one of the reasons for the “under color of state law” requirement is for the very purpose of imposing liability upon members of a purported posse that takes actions in violation of the law.
This case is no different from that of a sheriff led lynch mob, except that they were motivated by personal greed rather than a sense of vigilante justice or ethnic prejudice.
As to the lawful search defense, the entire Fourth Amendment reads:
“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issues, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The notion of subjective intent being irrelevant to probable cause is a trees for the forest kind of concern in this case.
The general rule is an absolute prohibition on searches and seizures which is “the right to be secure.” There is an express exception to the general rule against making any searches and seizures for searches made with warrants, and there are court created exceptions for stops made with reasonable suspicion that a crime was committed, consent searches, and searches made with probable cause that a crime was committed in exigent circumstances where a warrant cannot be obtained. But, all of the exceptions to the right to be secure implicitly only apply to searches or stops made by someone whose general purpose to enforce the law.
The subjective intent rule says that a search can’t be validated by an incorrect legal opinion that probable cause exists, not that what is going on in the head of the person making the search is irrelevant. The whole idea of probable cause hinges on the notion that it matters what a law enforcement officer knows or does not know before a search takes place, which is a matter of the law enforcement officer’s intent. A police officer who receives a credible but incorrect tip can have probable cause to search, while an officer who doesn’t know that someone else in the department has probable cause to believe that someone is committing a crime can still make an illegal 4th Amendment violating search.
The requirement that searches and seizures not be “unreasonable” is a separate and additional requirement that applies even where an exception to the general prohibition against making any search or seizure applies. For example, even if a pacemaker is stolen property, it would not be reasonable to seize it by simply tearing it out of a living person’s chest.
Even if someone acting under color of state law knows that a person from whom something is seized is committing a crime (drug possession), and the thing seized is contraband (drugs), converting the contraband seized to one’s personal use is per se an unreasonable manner of conducting the search in violation of the 4th Amendment.
August 27, 2010, 2:50 pmohwilleke says:
All civil rights violations are cases of acting intentionally in violation of the law. It seems to me that one can know that one is acting as part of an illegal posse, and still be acting under the color of state law.
The gravamen of a civil rights violation is that someone has illegal invoked governmental authority to commit it, whoever they happen to be.
If the crime of treason is an attempt to kill the government analogous to attempting to kill a person, then the crime of violating someone’s civil rights is an attempt to steal from the government what rightfully belongs to it (it’s legal authority) in analogy to the crime of theft by criminal impersonation where one steals by invoking a private person’s legal authority.
August 27, 2010, 2:56 pmwhit says:
it is not a felony in many jurisdictions.
August 27, 2010, 5:42 pmwhit says:
and as i said, many of these laws REQUIRE the person make an act as a police officer. i suggest that many of these commenters have never actually READ any impersonating a police officer statute, let alone the case law that went along with the statute
that too
August 27, 2010, 5:58 pmWilliam says:
You are correct, I am not a lawyer and did intend to impersonate one; I didn’t realize it was a requirement to post a question/comment.
August 27, 2010, 5:58 pmI certainly don’t pretend to understand the logical hair splitting that seems to be at the heart of many legal rulings, but then, I don’t claim to be a lawyer. Why we can’t have a law that says it’s illegal to represent oneself as someone or something you are not because you have freedom of speech is a bit beyond me. Why the police can arrest you for videotaping them from your own front porch is a little beyond me. Why me makeing a false statement to a police officer is a crime, but for him to lie to me during questioning is ‘good police work’, is a little beyond me.
I did however read the comments and most of them seemed to be dealing with the Fourth admendment issue. It looked to me like one person had indicated that in his state it was not against the law to dress like a police officer and someone else had indicated that it was a felony to impersonate an officer. It seemed to leave exactly what it means to ‘impersonate’ a little unclear. My question, although possibly poorly worded and maybe somewhat intentionally sounding a little bit snarky, was really intended as an honest question. Can I dress up as a police officer, firefighter, FBI agent, border patrol, TSA officer, etc., walk around town, irrespective of if I hope to accrue some benefit to myself or not, as long as I don’t try to engage in a law enforcement action claim a constitutionally protected right of free speech?
Anyway, thanks to Dennis N for his answer.
whit says:
for the 100th time, THE LAWS VARY FROM STATE TO STATE
like in every single other type of criminal law. i can’t speak about impersonating a federal agent laws. i can say that in no state i have worked in as a cop is it illegal to merely dress as a cop, walk around dressed as a cop, or tell somebody you are a cop, when in fact you aren’t
i suggest that too many people get their knowledge of criminal law from teevee, not from actually READING the laws.
statements like “it’s a felony” to impersonate an officer are meaningless. in WHAT STATE?
that’s like saying “it’s a felony to have sex with a 15 yr old”.
it’s rubbish. in some states it’s a felony. in some places it’s not even illegal
August 27, 2010, 6:04 pmSeth S. says:
Whit, I mostly agree, but I wanted to point out that under common statutory regimes it would depend why the individual told the other person they were a cop. If they wanted to show off and boast a bit for their high school reunion, it probably isn’t a crime. If they are identifying themselves as a cop to back up some demand (or apparent command), it probably is a crime, although this probably (almost definitely) varies to some extent by jurisdiction.
The applicable federal law is 18 U.S.C. Sec. 912.
Again, we see the “and acts as such” language – playing dress up isn’t enough. Pulling people over is.
August 27, 2010, 6:44 pmDAve says:
What about cutting to the front of the line at the donut shop?
August 27, 2010, 6:46 pmwhit says:
yes, and i explicitly exempted federal laws because i admit i am not knowledgeable about them (in re: impersonating a federal agent)
considering the fact that everything is illegal federally, and the penalties are obscene, etc. nothing would surprise me, though
August 27, 2010, 6:49 pmwhit says:
(:scrupulous silence:)
August 27, 2010, 6:50 pmSeth S. says:
DAve, I’m won’t share my own opinion of the Stolen Valor ruling, but think of it this way – (with some exceptions) lying to someone without materially benefiting isn’t a crime. Convincing them that you are a public servant and forcing them to respond to you as if you are acting with the state’s authority is. Dressing up is lying, but without material gain.
August 27, 2010, 6:51 pmDAve says:
That won’t wash.
Does cutting in line constitute material gain?
How about getting your meals comped because you’re claiming to be a CMOH earner?
How obvious does the answer have to be?
Show me a way to understand this which isn’t utterly sophistic and arbitrary-
The only “force” to which you refer above is that conveyed by your intentionally deceiving them about your identity. Which some say is a right to be protected.
“Emanations and Penumbras”
August 27, 2010, 6:58 pmwhit says:
i “rationalize” it this way. in general, as a libertarian, i believe that stuff should be legal. there’s a heavy burden in saying something should be criminal
thus, talking smack- lying, should not be criminal
a guy who lies to a girl at the bar, and thus she has sex with him, is a jerk, but it shouldn’t be illegal
caveat schtupper, so to speak
a guy who wants to dress up as a police officer and walk around because it gives him some sort of weird pleasure? more power to him
a guy who claims to have won the medal of honor, but didn’t? a complete scumbag, but let’s let the marketplace deal with him. let him be outed and shamed
a better remedy than govt. interference
as for the obstructing (lying to officers), at least where i work the law must be a material lie, and as part of an official investigation (into a crime)
iow, the state is engaged in an apparently valid investigation and your lie obstructs the investigation. say the cops are looking for johnny dirtbag, who has felony warrants. a tip tells them he is hiding in your house. cops come to the door and ask you if johnny dirtbag is there. you lie. that is, and should be criminal.
or police stop you (terry or whatnot) and you lie about your name.
stuff like that.
as for cops lying to you during an investgation (called “tactical deception” lol), this does not obstruct or impede the investigation. a witness lying DOES do so. it also can obstruct justice by moving suspicion towards an innocent party and away from the guilty party
it’s a legitimate state interest to criminalize that stuff imo
August 27, 2010, 7:11 pmMartinned says:
It is worth repeating: Not all stupid laws are unconstitutional. (Unless they fail under substantive due process, which is one of the other reasons I mentioned.)
August 27, 2010, 7:39 pmSeth S. says:
You’re quite correct – there is a gray area, and a large one. Does someone reacting to you with respect (and perhaps even apprehension or fear) because of a uniform you’re wearing force them to do something? Depends on how you define force, which is a debate I don’t think is worth getting into.
But do cops order people to give way in line? Or provide meals on the cuff? I never made those requests when I served, and I’d argue that it isn’t a legitimate use of authority – under those examples, the fake-officer isn’t (probably) ordering anyone to provide those things under the authority he appears to have. He is enjoying the benefits of other people’s mistake. I’m not sure whether walking around dressed like a cop and enjoying the incidental benefits of being mistaken for a cop fits within the impersonation statute, but I would guess it wouldn’t violate many state laws. It might violate some variation of a fraud law, like a 45 year old changing the date of birth on his driver’s license so he gets the senior citizens’ discount. The fake cop isn’t “acting” like a police officer by attempting to perform anything resembling an official duty. On the other hand, it would probably violate the federal law, which criminalizes “demand[ing] or obtain[ing] any money, paper, document, or thing of value,” and a free meal is certainly a thing of value. Back to Whit’s point about laws differing in different jurisdictions!
A more interesting question is whether a fake-officer who is walking around a neighborhood apparently on patrol (shining a mag light around, checking doors in a strip mall to make sure they’re locked after hours) is “acting as such” even when they don’t approach anyone. After all, they are now doing what a cop does in the normal course of his legitimate duties…but their lie isn’t particularized. It’s almost more akin to merely playing dress-up; fooling the world at large without addressing yourself to any specific individual.
Whit, I see your point, but I was bringing up a civilian lying about being a cop. I would hazard a guess that you’d agree that there is a legitimate state interest in having only bona fide police officers look like police officers…?
August 27, 2010, 10:32 pmwhit says:
“Whit, I see your point, but I was bringing up a civilian lying about being a cop. I would hazard a guess that you’d agree that there is a legitimate state interest in having only bona fide police officers look like police officers…?”
i’m not sure if it’s a good idea to make it ILLEGAL to merely LOOK like a police officer. my state doesn’t, fwiw.
if people want a cop, they call one (911). if people see somebody who LOOKS like a cop, they yell out for help and he turns out not to be a cop, i don’t really see how much worse off they are, then if he wasn’t there in the first place. they still … call a cop.
i just don’t see much of a problem with somebody walking around looking like a cop… who isn’t.
the last two states i’ve worked in don’t criminalize it, and i never saw any problems from the lack of such a law.
if somebody impersonates – by committing an action – that’s an ENTIRELY different story. we’ve had people , for example, use blue lights to pull over people and act as fake cops, and even kidnap people, etc. that way. that’s bad bad bad bad bad
fwiw, i think a better law is to make it illegal to possess any sort of blue light while in a motor vehicle (electric one that can be plugged in or that is already attached.)
there is no lawful reason to ever possess one in a motor vehicle. it’s imo something that should be contraband in and of itself and arrestable. our state requires the person actually activate it, to be illegal.
so, if i pull somebody over and they have a rotating blue light on the passenger seat, that’s not in itself illegal.
there’s a lot of mischief you can get into with one, and no legitimate reason to have one.
i don’t see any violation of any “right” if it’s made illegal contraband and it gives investigators a tool to arrest and investigate the mere possession of it.
at a minimum, it’s used to goof off, or get people to pull over so you can speed by them, but often it’s used for far worse things.
August 28, 2010, 4:46 amPersonFromPorlock says:
Whit, I seldom disagree with your opinions, but “I want” is always reason enough to possess or do something in America. You make a good case for outlawing a blue light in a civilian vehicle because of its potential for misuse, but the idea that someone needs to cite an approved reason for having one doesn’t fly.
Americans don’t have to justify their freedoms to the state, the state has to justify its restrictions to them. Which I think you’ve done in this case, but some of your thinking here is just wrong-headed.
August 28, 2010, 5:23 amMartinned says:
Actually, as long as they don’t go near anything that is particularly protected, like speech, the legislature can forbid whatever it likes as long as it can explain where the power to do so comes from. For the Feds, that means the list of art. I(8), which – at least in theory – is quite restrictive, but the states have a much more broadly defined police power. Given that I don’t think knowing falsehoods are protected speech, and given that people tend to know whether they’re police officers or not, I don’t see how the state would have to justify a ban on wearing police uniforms.
(Unless you mean substantive due process, which gave us so much joy in the SSM cases, even though it was only – and rightly – dicta then.)
And again: not every law that’s stupid or otherwise wrong is also unconstitutional.
August 28, 2010, 6:30 amJoseph Slater says:
Whit:
Re caveat schtupper, so to speak, mind if I borrow/steal that some time?
August 28, 2010, 10:48 amSeth S. says:
You’re correct, Whit – I mis-wrote. I meant the state’s legitimate interest in having only bona fide police officers act like police officers, by which I mean take actions that police officers would be authorized to take that civilians would not (conducting traffic stops, arresting people) or acting in such a manner as to deceive people who were relying on them being a real police officer – imagine flagging down a fake cop and reporting a suspicious person, stranded motorist, or crime (perhaps even a crime in progress.
August 28, 2010, 10:58 amPersonFromPorlock says:
You’ve got the words right, but not the music. Arbitrary exercise of the police power is a no-no: possibly only a cultural one, but no less powerful for that.
August 28, 2010, 11:08 amMartinned says:
Is it ever possible for a statute to be arbitrary? Lower-ranked law, sure, that’s how the DC Circuit makes a living, but a statute? The only concept that comes close is Meyer v. Nebraska style SDP, which I was careful to include in my previous comments, even though I don’t think I like it very much. (It’s hard not to support the result in Meyer, but that’s not enough reason to support the method. Not all stupid or otherwise wrong statutes are unconstitutional.)
August 28, 2010, 11:52 amFub says:
For example: Caryl Chessman, The Red Light Bandit.
Which begs a constitutional question besides free speech: what color lights would be banned in which states, and would such state bans be constitutional under the dormant commerce clause?
August 28, 2010, 12:44 pmHeadlines says:
[...] Looking for Drugs, and then Keeping the Drugs Violate the Fourth Amendment?”–headline,Volokh.com, [...]
August 28, 2010, 1:22 pmwhit says:
go ahead. i’m proud of my rhetorical baby. if you love it, set it free
August 28, 2010, 2:37 pmJerry in Detroit says:
It gets messier. According to my training officer, there are no special privileges accorded police officers. For instance, a neighborhood watch could legally set up a check point. If drugs were found, these could be seized and held pending the arrival of police officers. Whether the charges stick or not, the drugs will not be given back. These “entrepreneurs” go to jail for impersonating a police officer, drug possession and sale of illegal drugs.
August 29, 2010, 8:33 amSeth S. says:
This could very well be a jurisdictional idiosyncrasy, but that isn’t the case in the states I’m familiar with.
The Supreme Court has limited police authority to set up check points – sobriety check points and border check points are okay per Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), respectively, but random or suspicion-less stops to check for “ordinary wrongdoing” (other than drunk driving, for some reason) are verboten after Indianapolis v. Edmond, 531 U.S. 32 (2000). And there are state courts to deal with – a number of states have disallowed sobriety checkpoints, finding them unconstitutional or not authorized by state statute. See the Governors Highway Safety Association website at http://www.ghsa.org/html/stateinfo/laws/checkpoint_laws.html. In other states where it is permitted, it can be difficult to set up a check point – I was a cop in Florida and there were a number of hoops to jump through before you could set up a check point.
Back to the ability of citizens to set up check points, it seems unlikely that citizens would be able to do so without violating false imprisonment statutes…or at the very least statutes dealing with the obstruction of traffic. Police have very limited authority to stop someone without at least articulable reasonable suspicion and, although I’m far from an expert in this area, most citizen arrest rules require at least probable cause, don’t they?
August 29, 2010, 10:49 amEvan says:
So what probable cause do police have to stop someone at a sobriety/drug/whatever checkpoint? If the police have probable cause, wouldn’t the ordinary citizens have it, too? (“Based on the wide experience of my second cousin, who’s a police officer, and on that of the police officer whose blog I read every week, such-and-such behavior is indicative of…”)
August 29, 2010, 4:22 pmSeth S. says:
None – sobriety check points are called “random, suspicionless road blocks” for exactly that reason. But the Court permits them because the temporary inconvenience is, in their balancing, outweighed by the public safety benefit (not, I should point out, the need to enforce “ordinary” criminal law). Police have statutory obligations and powers, including detainment, while citizens do not.
Note that gated communities shake things up a little bit. It isn’t considered state action for a group (even a large group) of homeowners to post a guard and not allow people into their neighborhood and gated communities have certainly done just that. But there is a difference between “check in with the guard before you enter a private community” and “neighborhood watch sets up a road block on a public street.” A neighborhood watch group would have the same suspicion (none), but not the same authority to stop.
August 29, 2010, 8:44 pm