Re: Last Story

On Sep 8, 2010, at 12:05 PM, Nat Helms wrote:

Neal,

Last story didn't get much attention publically but it sure set off a real shit storm inside certain circles.Talking out of school here so I can't reveal more without infringing on assured discretion but it generated thinking about what is offered below as legal opinion to the concerned parties considering worst case scenario..... please do not associate me with this even if you dismiss it as irrelevent.Forgive the intrigue.

Nat

CHAPTER 43

TITLE: SPECIAL AGENT ARREST AUTHORITY, PERSONAL LIABILITY, AND LEGAL REPRESENTATION

43-4. Special Agent Personal Liability.

43-4.1. NCIS Special Agents may be charged with and held personally liable for violating a citizen's Constitutional rights. See discussion below regarding legal representation. The principal consideration in deciding the Special Agent's culpability is whether the Special Agent was acting in good faith and with reasonable belief that his actions were lawful. Violations of the Constitutional rights of citizens are normally charged under one of the following provisions:

43-4.2. 18 USC 241 (Conspiracy Against Rights). States in part: "If two or more persons conspire to injure, oppress, threaten, or intimidate any person ...in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same...shall be fined under this title or imprisoned not more than 10 years, or both...."

43-4.3. 18 USC 242 (Deprivation of Rights Under Color of Law). States in part: "Whoever, under color of any law, statute, ordnance, regulation, or custom, willfully subjects any person ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both...."

43-5. Legal Representation of Special Agents

43-5.1. Representation. The cost of legal fees to defend a criminal or civil action could run into thousands of dollars. Representation for NCIS Special Agents is provided by the Department of Justice and is discretionary on a case by case basis. Representation is neither automatic nor compulsory; Special Agents are free to retain counsel of their choice at their own expense. Also, it is important to note that an assigned DOJ attorney is required to represent the United States as well as the individual and to assert all appropriate legal positions and defenses which would protect the interests of the United States; DOJ attorneys will not assert any legal position or defense which is not in the interest of the United States, even if it might be in the interest of the individual defendant. Thus, even with DOJ representation, a Special Agent may desire additional counsel (at his or her own expense) to fully protect their individual interests. There is no guarantee that if a Special Agent intervenes to enforce a state law, either as a “peace officer” or private citizen, that the Department of Justice will represent him or her. Representation is contingent upon it being in the interest of the United States and where the Special Agent's actions reasonably appear to have been performed within the scope of his or her employment. Though intervention in state and local crime may be beyond the federal authority of a Special Agent, in the past DOJ has provided representation on the theory that such intervention is related to the agent’s federal law enforcement responsibilities, thus within the scope of employment. However, even if DOJ finds that representation is within the interest of the United States and the Special Agent acted within the scope of employment, DOJ may decline representation if the agent failed to act in good faith and with a reasonable belief in the legality of his conduct. For example, action on minor offenses (traffic stops), may be outside the authority of a peace officer or private citizen, and considered personal rather than a serious law enforcement effort. Also, representation is not available to Special Agents in federal criminal proceedings or in agency disciplinary inquiries, or for de minimus cases such as traffic citations.

43-5.2. Judgments (individual). If a Special Agent is found liable for actions taken to enforce state or local law, money damages may result. Absent substitution (discussed below), a decision by DOJ to provide representation doesn't equate to an agreement to indemnify the Special Agent for any resulting money damages. In fact, there is no authority for the federal government to pay or reimburse persons for damages awarded against them personally. If there is a judgment against a Special Agent personally, the Special Agent’s personal assets are at risk to pay the judgment. It is also possible that liability could move up the chain of command to those managers/supervisors responsible for directing or training the Special Agent found liable. Due to the potential personal liability, it is recommended that all Special Agents evaluate the cost/benefit of acquiring personal liability insurance.

43-5.3. Substitution. If DOJ decides to represent a Special Agent, it is possible that a motion will be submitted to the court to substitute the name of the United States for that of the Special Agent. If the motion is granted, the U.S. Government becomes the defendant in place of the Special Agent and will pay any judgments.