Government Misconduct

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Our civil rights laws provide protections to people against abuse by government.  Originally used in the 1870s by the President of the United States to fight white supremacist organizations such as the Ku Klux Klan or KKK, the Civil Rights Act of 1871, 42 U.S.C. section 1983, allows today a civil cause of action against “[e]very person, who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory,” deprives another person of constitutional rights.  Consequently, where a government practice or custom or a government official violates a person’s civil rights, the harmed person may bring claims in court for relief.  People are familiar with allegations of government misconduct when it comes to occurrences of police brutality and excessive force, but there are other forms of government misconduct.  Examples below include police officer sex-related misconduct, violations of a law enforcement officer’s rights under the First Amendment of the United States Constitution and adverse employment decisions against public employees who blow the whistle in Texas on government law breaking.

Sexual Misconduct and Harassment

Sexual assaults, rapes and sexual misconduct or harassment by law enforcement officers acting under color of law can give rise to a civil cause of action under 42 U.S.C. section 1983.  Federal district court cases in Houston and San Antonio, Texas, point out that police officer sexual misconduct can subject municipalities to civil liability for damages under 42 U.S.C. section 1983 where, for example, there is a failure to supervise the officer and deliberate indifference to the rights of the person subjected to sexual assault by a law enforcement officer.  See, Centamore v. City of Houston, 9 F.Sup.29 717 (S.D.Tex.1997); Arnold v. City of San Antonio, 2009 U.S.Dist.Lexis 32744 (W.D.Tex.2009).

Founded in 1893, the International Association of Chiefs of Police is the world’s oldest and largest association of law enforcement executives.  The problem of sexual misconduct among law enforcement is recognized by law enforcement and the International Association of Chiefs of Police. According to the International Association of Chiefs of Police, sexual offenses and sexual misconduct by police officers represent a grave abuse of the authority that the badge represents and it is imperative that law enforcement executives prepare proactively to address and prevent police officer sexual misconduct since police officer sexual misconduct harms people and damages the bond of trust between law enforcement departments and the communities they protect and serve.  The International Association of Chiefs of Police recommends aggressive leadership action when officers tarnish the badge by committing sexual offenses.  Quoted in the organization’s executive guide, an author familiar with the subject of police officer sexual misconduct asserts that undocumented, uninvestigated and un-adjudicated law enforcement sexual misconduct often escalates.  Indeed, sexual misconduct within a law enforcement agency may be indicative of a need for systemic and cultural changes.

A study discussed in The Police Chief: The Professional Voice of Law Enforcement provides empirical data on an unprecedented number of cases involving police sexual misconduct and violence.  The most serious offense charged in over 20% of the cases was forcible rape, followed by forcible fondling at 19.5 %, statutory rape at 10.8 % and, among other categories, forcible sodomy at 9.9%.

A study by the U.S. Department of Justice found that Texas prisons and jails have some of the highest rates of inmate sexual abuse in the United States.  The Observer reported that the Harris County jail had the third highest rate of sexual abuse among the more than 350 jails surveyed nationwide.  Sexual abuse within this aspect of law enforcement can involve not only inmate-on-inmate sexual misconduct but also staff-on-inmate sexual misconduct.

Rapes, sexual misconduct and other forms of unlawful sexual harassment among law enforcement is a recognized problem and people subjected to this type of violation have rights they can assert for relief.

Retaliation for Exercising First Amendment Rights

The First Amendment of the United States Constitution protects against government interference with the freedoms of expression and religion.  More specifically, the First Amendment pledges that “[c]ongress shall make no law … abridging the freedom of speech.”   Where a law enforcement officer exercises First Amendment rights as a citizen and is fired for doing so, the law enforcement officer may assert claims against the governmental employer responsible for the discharge.  To prove his or her claim of First Amendment retaliation in Texas, a law enforcement officer must show: (1) he or she suffered an adverse employment decision; (2) his or her speech involved a matter of public concern; (3) his or her interest in commenting on matters of public concern outweighs the governmental entity’s interest in promoting efficiency; and (4) the speech motivated the adverse employment decision.  If the law enforcement officer’s speech is part of his or her official duties, then the law enforcement officer is speaking as an employee rather than a citizen and activities undertaken in the course of performing one’s job are activities pursuant to official duties which may preclude the claim.  However, a law enforcement officer who, on his or her own without compensation, writes letters to a newspaper editor during a campaign that expresses support for an incumbent Sheriff and disapproval of the Sheriff’s opponent may have a claim for First Amendment retaliation when he or she is fired as a result of the letter after the Sheriff’s opponent wins the election and becomes the new Sheriff.  Letters to the editor that support a candidate during an election campaign are a unique form of speech that embody the very essence of the First Amendment and require its full protection.

Public Employee Whistleblowers in Texas

The Texas Whistleblower Act protects public employees who make good faith reports of violations of law by their employer to an appropriate law enforcement authority, forbidding the employer from suspending or terminating the public employee or taking other adverse personnel actions against the public employee making the report.  The purpose of the Texas Whistleblower Act is to protect public employees who speak out against unlawful conduct, elevating these employees to protected status as a matter of fundamental policy and viewing their whistleblowing as a courageous act of loyalty to the larger community.  The Texas Whistleblower Act is designed to enhance openness in government and compel compliance with law by protecting the public employee whistleblower and making that employee whole through lawsuits when they suffer adverse employment decisions as a result of their act of courage.