Why aren't Red Flag anything instant slam dunk 18 USC 242 wins?

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Racer X

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Deprivation Of Rights Under Color Of Law

Why would a judge even risk hearing a case?

Why aren't politicians, from all parties, being brought up on charges daily by the DOJ for failure to uphold their oath of office, everytime they try to circumvent local, county, and State civil rights laws and the US Constitution?

I really hope there are current, or retired state or federal judges here who can shed some light on this one.

The pistol brace White House/ATF collision as it seems to be unfolding is a classic example.

I presume its OK to ask here, as it is certainly an overarching 2nd A issue, and note one of the banned topics.

I frequentlt remind politicians that their views are potentially an 18 USC 242 violation, and a violation of their oath of office.
 
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Jeez, the FBI won’t even investigate Hunter’s lap top. To think they’d investigate other like minded leftists is dreaming.

BUT! There is a civil side to the law that allows for civil suits for damages. That provision ought to be put to use by 2A public interest groups and law firms.

ETA: I’ll find the cite later, when I have time.
 
Back when I was in high school they taught a civics class on the American government. There are several complex issues that you would have had explained. Sovereign Immunity; the King can do no wrong. You cannot sue the Federal gov. unless they give you permission. You have to go to the Federal Court of Claims to get permission. There are some exceptions where the Government has codified certain offenses as grounds for a suit against them, the Federal Tort Claims Act is one of them. Another, 42 USC 1983, authorizes suits by civilians against government officials, or agencies, for violation of constitutional rights, but you need to follow a specific procedure to have that claim validated before proceeding. !8 USC 242, being cited by the OP, is a law, which needs to be enforced by Federal law enforcement, not civil courts. It is sort of similar to traffic violations; as a civilian you cannot sue somebody for speeding if you were not involved in an accident. A policeman can cite them for speeding. You, as a citizen, cannot sue somebody else for not paying the Federal taxes.
 
I think I might have been able to shed some light, but OP specified "...current, or retired state or federal judges....".

I don't qualify.

I hope someone with those qualifications will step up to opine since that is where OP has set the bar.

FWIW, when I took the mandated Federal Civil Rights Act block of instruction at the FBI National Academy, our instructor was an FBI Special Agent and attorney.

He was not, and had not been, a judge, but he certainly knew his subject, as did all the instructors there.
 
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The simple answer is that Red Flag Laws or any that touch on Constitutional matters are enacted by legislatures (Congress could as well, as could most city councils and county commissions), and unless that specific Red Flag law has been ruled unConstitutional, enforcing the law is a lawful exercise of governmental power.

Legislators doing legislation have 'legislative immunity' from prosecution; judges hearing cases have 'judicial immunity' from prosecution, and prosecutors also have absolute immunity while prosecuting; police enforcing laws have 'qualified immunity' from prosecution so long as they work within their legal limitatioins.
 
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Those immunity rules are far less protective of govt officials today than up to the 'Due Process Revolution' of the 60s/70s. The original rule, the 11th Amendment, is harsh. In simple terms, it is soveriegn immunity - you can't sue government. Period.

Eleventh Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
 
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RetCapt said:
I think I might have been able to shed some light, but OP specified "...current, or retired state or federal judges....".

I don't qualify.

I hope someone with those qualifications will step up to opine since that is where OP has set the bar.

FWIW, when I took the mandated Federal Civil Rights Act block of instruction at the FBI National Academy, our instructor was an FBI Special Agent and attorney.

He was not, and had not been, a judge, but he certainly knew his subject, as did all the instructors there.
Click to expand...

I'd love to hear what you were lectured on. Very relevant.
 
Since others have already contributed, I will try to keep this fairly brief.

Some context to set the stage.

While anyone acting under color of law (thus at least any executive branch of government) is subject to section 242, the reality is that it is most often used to prosecute law enforcement officers. So the FBINA had a somewhat delicate balance presenting this material to LEOs who had advanced enough in their careers to attend the FBINA. Since all of us were commanders, to say we were strong willed would be an understatement. The FBI was well aware of this.

The history presented was that the Federal Civil Rights Act was reconstruction era legislation intended to curb and combat (racial) injustice by governmental officials and civilians - to wit the denial of any constitutional or federal right. Pretty tough to differ with that intent.

The US DOJ is tasked with enforcement of Title 18, sections 241 and 242. The FBI is the investigating agency. Once the FBI completes their investigation it is the decision of DOJ whether or not to prosecute.

I can recall the FBI being in our office to look at case files. In conversing with the agents, they would tell me they were investigating a complaint that someone's civil rights had been violated. It was very common for the FBI to get such complaints. And it was just as common for them to review the case file and close at intake. It was not an adversarial relationship.

The policy of DOJ at that time (I attended the NA in 1981) was that the DOJ would defer to local justice systems provided the local systems were prepared to deal with the violations of state laws. Since the Federal Civil Rights Act addresses deprivation of constitutional rights, rather than the physical acts themselves (such as murder, assault, etc) there is no double jeopardy involved when facing state and then federal prosecution for the same incident.

There is a critical element of both 241 and 242 that precludes the act from being a fall back to routinely allow federal prosecution for any act that the DOJ might desire to prosecute. That element is specific intent, since the government must prove to the jury that the defendant(s) had this specific intent to deprive the victims(s) of any constitutional or federal right during the incident in question. Specific intent crimes have a higher burden of proof than do general intent crimes.

That briefly sums up what the course at the FBINA presented. It was fairly and objectively presented, and despite the concerns of all of us, there was no tendency to paint us all with the same broad brush we otherwise see.

That was how it was presented to us in 1981. I don't know how it is presented today, so my account has to be taken from a (now) quite historic perspective.

The case of Ferguson PD Officer Darren Wilson provides a good example of how critical the specific intent element is. I think it is obvious that the DOJ really wanted to prosecute Officer Wilson since the local district attorney did not secure an indictment. The problem was the facts. Officer Wilson was defending himself against a large aggressive individual who had just committed a strong-arm robbery. Given the specific intent element of the section, the proof was not there, despite the pressure from the media and the various progressives whose narrative is vengeance rather than justice. It would have been extremely embarrassing for DOJ to prosecute Officer Wilson only to see him acquitted, so they deferred. At least that is my take on it.

To bring all this up to now, and respond to OP's initial inquiry, which I hope to do without risking political discourse, here is the issue, at least as I see it. OP makes a point about various federal government officials being in violation of the Federal Civil Rights Act. The DOJ trying to classify parents who speak out at school board meetings as domestic terrorists is one egregious example.

But if DOJ enforces the Federal Civil Rights Act, who enforces it when DOJ is the violator?

Looks like brevity did not survive.

Mods: I have tried to steer clear of politics here. If I did not succeed, I will take my lumps and I apologize.
 
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Racer X said:
Deprivation Of Rights Under Color Of Law

Why would a judge even risk hearing a case?

Why aren't politicians, from all parties, being brought up on charges daily by the DOJ for failure to uphold their oath of office, everytime they try to circumvent local, county, and State civil rights laws and the US Constitution?

I really hope there are current, or retired state or federal judges here who can shed some light on this one.

The pistol brace White House/ATF collision as it seems to be unfolding is a classic example.

I presume its OK to ask here, as it is certainly an overarching 2nd A issue, and note one of the banned topics.

I frequentlt remind politicians that their views are potentially an 18 USC 242 violation, and a violation of their oath of office.
Click to expand...

Your question is predicated on a misunderstanding of basic first year criminal law. Don't have the time or bandwidth to go in depth.
PS-I am a current state judge. We gots immunity :D
 
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