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8-3.000 - Enforcement Of Civil Rights Criminal Statutes

8-3.010 Introduction
8-3.100 Coordination of Activities
8-3.120 Staffing Cases
8-3.130 Cases of National Interest
8-3.140 Advance Notice/Prior Approvals of Indictments
8-3.141 Certification Provisions
8-3.142 Coordination of Immunity Requests and Requests for Juvenile Certification
8-3.150 Declinations
8-3.160 Appeals
8-3.170 Cooperation with State Prosecutions
8-3.180 Subpoenas Issued to FBI Agents or Other Federal Agents
8-3.190 Notification to Parties of Closing File
8-3.195 Production or Disclosure in Federal And State Proceedings of Material or Information in Civil Rights Division Files
8-3.200 Prior Approvals
8-3.300 Neutral and Objective Criteria for Guiding Prosecutorial Discretion


8-3.010 - Introduction

The United States Attorneys and the Civil Rights Division share responsibility for enforcement of criminal civil rights statutes. The Assistant Attorney General for the Civil Rights Division and the Civil Rights Division’s Criminal Section oversee that enforcement. The principal criminal statutes whose enforcement is overseen by the Civil Rights Division are 18 U.S.C. § 241 (Conspiracy to Injure Citizens in the Exercise of Federal Rights); 18 U.S.C. § 242 (Willful Deprivations of Federal Rights Under Color of Law); 18 U.S.C. § 245 (Interference with Federally Protected Activities); 18 U.S.C. § 247 (Damage to Religious Property); 18 U.S.C. § 248 (Freedom of Access to Clinic Entrances); 18 U.S.C. § 249 (Hate Crime Prevention Act); 42 U.S.C. § 3631 (Interference with Fair Housing Activities); 18 U.S.C. § 1581 (Peonage); 18 U.S.C. § 1584 (Involuntary Servitude); 18 U.S.C. § 1589 (Forced Labor); 18 U.S.C. § 1590 (Trafficking with Respect to Servitude); 18 U.S.C. § 1591 (Sex Trafficking); 18 U.S.C. § 1592 (Document Servitude), and 18 U.S.C. § 1594(a), (b), and (c) (Attempting and Conspiring to Violate Trafficking Statutes). United States Attorneys’ Offices, working in coordination with the Civil Rights Division, are jointly responsible for enforcement of criminal civil rights statutes in their individual districts.

[updated March 2018]


8-3.100 - Coordination of Activities

The Civil Rights Division and the United States Attorneys’ Offices will work as partners to ensure a vigorous national civil rights enforcement program. The purpose of this chapter is to provide guidance to the United States Attorneys and the Criminal Section of the Civil Rights Division in carrying out their responsibilities in the investigation and prosecution of violations of criminal civil rights statutes in a manner that (1) encourages initiative on the part of individual United States Attorneys’ Offices and draws upon their litigation expertise and knowledge of the local community; and (2) utilizes the trial expertise and institutional knowledge of the Criminal Section of the Civil Rights Division. Cooperative prosecutions and investigations utilizing attorneys from both the Criminal Section and the United States Attorneys’ Offices can be particularly successful and can provide valuable benefits in the enforcement of these statutes. When it is appropriate for either the Civil Rights Division or a United States Attorney’s Office to act independently on a matter in a particular district, the office initiating the activity should ensure that the other office is notified in advance. Specifically, prior to initiating any significant activity in a district, the Civil Rights Division shall provide notice to the designated contact attorney for the United States Attorney’s Office. Similarly, United States Attorneys’ Offices shall advise the Civil Rights Division of matters not already being monitored by the Civil Rights Division that appear likely to result in inquiries to the Civil Rights Division.

United States Attorneys’ Offices and attorneys from the National Security Division should consult with the Civil Rights Division in any case involving an act of domestic terrorism in which the underlying incident was motivated in whole or in part (or is suspected of being motivated in whole or in part) by one of the bias motivations listed in any federal hate crime statute, 18 U.S.C. §§ 245, 247, 249 or 42 U.S.C. § 3631. The Civil Rights Division should also be consulted on any domestic terrorism case in which the underlying act was motivated in whole or in part by the perpetrator’s views or beliefs about reproductive health services, as such motivation falls under Freedom of Access to Clinic Entrances, 18 U.S.C. § 248, enforced by the Civil Rights Division.  

[updated March 2018]


8-3.120 - Staffing Cases

Subject to the general principles contained herein, either the Civil Rights Division or a United States Attorney’s Office may investigate and prosecute on its own any type of criminal civil rights violation.

At the outset of a criminal investigation initiated by a United States Attorney’s Office that may implicate federal criminal civil rights statutes, including human trafficking and involuntary servitude statutes, 18 U.S.C. §§ 1581 to 1594, and in no event later than ten days before the commencement of the examination of witnesses before a grand jury, the United States Attorney’s Office shall advise the Civil Rights Division in writing of the new investigation. The notification should be in writing and contain the following information: (1) identity of the targets of the investigation; (2) the factual allegations under investigation; (3) the statutes that may have been violated; (4) the United States Attorney’s Office’s assessment of the significance of the case and whether the case is one of “national interest,” as defined below; and (5) the United States Attorney’s Office’s proposed staffing of the matter, including whether a Civil Rights Division attorney should be assigned to work directly on the matter. The United States Attorney’s Office will advise the Civil Rights Division as the case develops of new information relating to the United States Attorney’s Office’s assessment of the case and whether it is one of “national interest.”

When an attorney from the Criminal Section of the Civil Rights Division is jointly working on a case, notification to that attorney is sufficient. If there is no attorney from the Criminal Section assigned to the case, notification should be made to the Deputy Chief who has supervisory authority over cases in the district conducting the investigation or to the Principal Deputy Chief. In cases involving human trafficking or involuntary servitude, notification under this provision shall be made to the Criminal Section’s Human Trafficking Prosecution Unit at HTPU@usdoj.gov.  

Similarly, at the outset of a criminal investigation initiated by the Civil Rights Division, the Division should notify the United States Attorney(s) for the district(s) in which the conduct occurred in writing of the new investigation, containing the above information.   

In cases involving sex trafficking of minors in violation of 18 U.S.C. § 1591, the Child Exploitation and Obscenity Section of the Criminal Division should also be notified.

The staffing proposal of the United States Attorney will be given deference by the Civil Rights Division. If the Civil Rights Division does not express disagreement with a staffing proposal by the United States Attorney within three business days, the proposal is deemed acceptable. The Assistant Attorney General of the Civil Rights Division retains the final and on-going authority to determine the staffing of any criminal civil rights matter that is being handled jointly.

[updated March 2018] [cited in USAM 8-3.200USAM 9-2.400USAM 9-75.030]


8-3.130 - Cases of National Interest

A case of “national interest” is one that presents important public policy considerations; a case that presents a novel issue of law; a case that because of peculiar facts and circumstances may set important precedent; a case with simultaneous investigations in multiple districts (unless the United States Attorney’s Office in each district and the Civil Rights Division conclude that national interests are not involved); a case with international or foreign policy implications; a case that is urgent or sensitive; or a case that substantially affects the uniform application of the law. A case involving a violation of the federal criminal civil rights laws resulting in death is presumed to be a case of national interest.

The Assistant Attorney General for the Civil Rights Division, after consultation with the United States Attorney, shall determine whether a case is of “national interest,” considering the factors listed above. In a case of national interest, the Assistant Attorney General, after consultation with the United States Attorney, may require the United States Attorney’s Office and the Civil Rights Division to participate jointly as co-counsel from the initiation of the investigation through prosecution. The Assistant Attorney General for the Civil Rights Division, after consultation with the United States Attorney, shall take into consideration all of the circumstances, including the experience of the particular United States Attorney’s Office and the efficient use of government resources in making staffing decisions. The Assistant Attorney General for the Civil Rights Division, after consultation with the United States Attorney’s Office, may also determine that a case is best staffed by attorneys only from the United States Attorney’s Office or only from the Civil Rights Division. 

In a case of national interest or that is presumptively of national interest, the United States Attorney’s Office in the relevant district, the FBI, and the Civil Rights Division should consult and coordinate with each other before any press conference is held or before any statement is made to the media.  

[updated March 2018]


8-3.140 - Advance Notice/Prior Approvals of Indictments

United States Attorneys need not obtain prior authorization by the Civil Rights Division to indict criminal civil rights cases, including human trafficking or involuntary servitude cases, unless the case has been deemed by the Assistant Attorney General for the Civil Rights Division as a case of national interest or unless approval is necessary due to a statutory certification requirement. See Section 8-3.141. However, prior to presenting any civil rights case for indictment, the United States Attorney’s Office shall provide written notification to the Civil Rights Division of the intention to seek an indictment or to file a felony information. This notification should occur at least 10 business days before the indictment will be presented to the grand jury, except in emergencies when time is of the essence. The notification should be accompanied by a copy of the proposed indictment and a prosecutive memorandum. United States Attorneys’ Offices are encouraged to provide even earlier notice as a general practice in order to take full advantage of the expertise of the Civil Rights Division.

Even in those cases in which the United States Attorney’s Office need not obtain prior authorization to indict, if there exists a significant issue affecting the Department of Justice’s enforcement of federal civil rights laws, then the Assistant Attorney General for the Civil Rights Division may exercise the ultimate authority to disapprove the prosecution.

If prior approval to indict a civil rights matter is required because the case has been deemed by the Assistant Attorney General for the Civil Rights Division to be a case of national interest or because there is a statutory certification requirement, the United States Attorney’s Office will provide to the Civil Rights Division a copy of the proposed indictment and any prosecutive memorandum at least 10 business days in advance of the time when the indictment will be presented to the grand jury. The Civil Rights Division will communicate its authorization decision within 10 business days of receipt of the proposed indictment, unless certification by ranking Department officials is required by law, 18 U.S.C. §§ 245, 247, and 249.

When an attorney from the Criminal Section of the Civil Rights Division is jointly working on a case, or has been formally assigned to assist with legal issues, the indictment may be sent to the attorney assigned to the case. If there is no attorney in the Criminal Section formally assigned to the case, notification should be made to the Deputy Chief with supervisory authority over cases from the district seeking indictment approval or to the Principal Deputy Chief. In cases involving human trafficking or involuntary servitude, notification under this provision shall be made to the Criminal Section’s Human Trafficking Prosecution Unit at HTPU@usdoj.gov.  

[updated March 2018] [cited in USAM 8-3.200]


8-3.141 - Certification Provisions

Several federal hate crime statutes require certification from the Attorney General or from his or her designee before prosecution may be undertaken. See 18 U.S.C. §§ 245, 247, and 249. The Assistant Attorney General for the Civil Rights Division has been delegated this certification authority. See 28 C.F.R. § 0.50 (delegating authority for §§ 245 and 249); Attorney General Order No. 2048-96, Delegation of Authority to Authorize the Initiation of Prosecutions under 18 U.S.C § 247 (delegating authority for § 247). No indictment, information, or criminal complaint under these statutes may issue without such certification.

When an attorney from the Criminal Section of the Civil Rights Division is jointly working on a case with attorneys from a United States Attorney’s Office, or when an attorney from the Criminal Section of the Civil Rights Division has been formally assigned to assist the United States Attorney’s Office with legal issues, the request for certification may be sent to the attorney assigned to the case who will then provide advice and assistance in the certification process. If there is no attorney in the Criminal Section formally assigned to the case, the request for certification should be sent to the Deputy Chief with supervisory authority over cases from the district seeking certification or the request may be sent to the Principal Deputy Chief. In cases charging conspiracies to violate these statutes or solicitations to violate these statutes, notice should be given to the Criminal Section and may be provided in the same manner.

[added March 2018]


8-3.142 - Coordination of Immunity Requests and Requests for Juvenile Certification

Any time a United States Attorney’s Office submits a request, in accordance with §§ 9-23.100 et seq. of the United States Attorney’s Manual (USAM), to immunize a witness in a civil rights case, including in a human trafficking case, the request should be coordinated through the Criminal Section of the Civil Rights Division. In cases in which an attorney from the Criminal Section is jointly working a case with attorneys from a United States Attorney’s Office, or when an attorney from the Criminal Section of the Civil Rights Division has been formally assigned to assist the United States Attorney’s Office with legal issues, coordination with the assigned attorney is sufficient. If there is no attorney from the Criminal Section formally assigned to the case, the request should be sent in advance to the Deputy Chief with supervisory authority over cases from the district seeking immunity or the request may be sent to the Principal Deputy Chief. 

Similarly, any time a United States Attorney’s Office requests authorization to proceed against a juvenile subject in a civil rights case, in accordance with §§ 9-8.000 of the USAM, that request should be coordinated through the Criminal Section, either through an attorney assigned to the case, or through the appropriate Deputy Chief or through the Principal Deputy Chief.

Any time a United States Attorney’s Office requests authorization to prosecute a case after a state prosecution, in accordance with the dual prosecution policy (Petite Policy) set forth in § 9-2.031 of the USAM, in a case involving civil rights charges, including human trafficking charges, that request should be coordinated through the Criminal Section, either through an attorney assigned to the case, or through the appropriate Deputy Chief or through the Principal Deputy Chief.

[added April 2018]


8-3.150 - Declinations

The United States Attorneys’ Offices may decline cases by orally advising the FBI or other lead federal investigative agency of the declination. The declination should then be reflected in the investigative report submitted by the FBI or other lead federal investigative agency.

In all cases resulting in death, the Civil Rights Division will obtain the concurrence of the United States Attorney’s Office before closing any such case.

Ultimate declination authority in any case arising under the federal civil rights laws resides with the Assistant Attorney General for the Civil Rights Division. While cases should be declined after coordination between the Civil Rights Division and the United States Attorneys’ Offices, a declination by a United States Attorney’s Office does not bind the Civil Rights Division.

[updated March 2018]


8-3.160 - Appeals

Appeals in civil rights cases are supervised by the Appellate Section of the Civil Rights Division. Additional information regarding notification and coordination between United States Attorneys’ Offices and the Civil Rights Division of appeals of civil rights cases in which the United States participates as a party and as amicus curiae are set forth in §§ 8-2.150 and 8-2.170 of the USAM. For responsibilities of United States Attorneys’ Offices in the handling of criminal appeals, see USAM 2-3.210.

[updated March 2018]


8-3.170 - Cooperation with State Prosecutions

Frequently, conduct which deprives persons of federally protected rights in violation of federal law also violates state law. In such cases, where state and local authorities undertake prosecution in state courts, it is Department of Justice policy to cooperate with the local prosecutor unless there is a good faith basis that is supported by the law, the facts, or other established Department of Justice Policy, to disagree with the state’s decision to prosecute or with its conduct of a prosecution.

Any release of reports of investigative materials should be undertaken in accordance with 28 C.F.R. Part 16 and §§ 1-6.000 et seq. of the USAM.

[updated March 2018]


8-3.180 - Subpoenas Issued to FBI Agents or Other Federal Agents

Occasionally FBI agents, or other federal agents, are subpoenaed to appear to testify in local proceedings or even in federal proceedings to which the United States is not a party. Quite often the subpoena is issued on behalf of a state defendant in a criminal case seeking to obtain the results of an FBI investigation into alleged police mistreatment of the defendant. This can also arise with regard to other federal agents in prosecutions relating to human trafficking.

The Department of Justice’s policy is generally to resist such a subpoena except where the agent can give eyewitness fact testimony like any other witness. See 28 C.F.R. Part 16 and §§ 1-6.100 et seq. of the USAM. There may be unique and limited circumstances in which the FBI (or other federal agency), the Criminal Section of the Civil Rights Division, and the United States Attorney’s Office all agree that testimony of an agent is in the interest of justice. In such a case, the agent may testify. In all cases involving requests for testimony in cases related to civil rights investigations or prosecutions, it is expected that the Civil Rights Division, the relevant United States Attorney’s Office, and the FBI will consult. In no event should any component represent to a court or defense counsel that an agent will provide testimony without consultation with the other components.

When subpoenas are issued to Department of Justice attorneys or agents for either testimony or records in any civil rights matter, the Assistant Attorney General for the Civil Rights Division has ultimate authority to determine the Department of Justice’s position regarding compliance with the subpoena. Any motions to quash or related proceedings should be handled by the United States Attorney’s Office in consultation with the Civil Rights Division. In cases involving a request for records authored by the FBI, the FBI must be consulted before decisions are made about whether the records are turned over. 

[updated March 2018]


8-3.190 - Notification to Parties of Closing File

Because criminal civil rights cases often spark intense public interest, it is often the practice to send case-closing notification letters in cases closed without indictment or prosecution. The practice of sending notification letters of case closings is particularly encouraged in cases of police misconduct and other cases involving law enforcement officer subjects.  

It is important that United States Attorneys’ Offices advise the Criminal Section as soon as possible of any matters involving police misconduct (or other criminal civil rights cases in which a subject acted under color of law) that they believe may have prosecutive merit. This notification should occur not more than 30 days after receipt of the final FBI report in the matter. The Criminal Section of the Civil Rights Division will not send notification letters if a United States Attorney’s Office has expressed an interest in investigating or prosecuting non-civil rights charges against the subject or subjects, unless the letter has been expressly authorized by the United States Attorney’s Office. 

In some rare, high profile, or complex matters, attorneys from the Civil Rights Division and the United States Attorney’s Office may elect to meet with families of a victim to explain the basis for a closing decision. United States Attorneys’ Offices who wish to employ such a procedure in a particular case should consult with the Criminal Section well in advance.

[updated April 2018]


8-3.195 - Production or Disclosure in Federal And State Proceedings of Material or Information in Civil Rights Division Files

General procedures to be followed by Department of Justice employees in responding to demands for Department of Justice information in federal and state proceedings are contained in 28 C.F.R. Part 16 and in §§ 1-600 et seq. of the USAM.

[updated March 2018] [cited in USAM 8-2.190]


8-3.200 - Prior Approvals

8-3.120 At the outset of a criminal investigation initiated by a United States Attorney's Office that may implicate federal criminal civil rights statutes, including human trafficking and involuntary servitude statutes, and in no event later than ten days before the commencement of the examination of witnesses before a grand jury. Civil Rights Division must be advised in writing.
8-3.120 In cases involving sex trafficking of minors in violation of 18 U.S.C. § 1591. Notify the Child Exploitation and Obscenity Section of the Criminal Division.
8-3.140 Indictments of civil rights cases deemed by the Assistant Attorney General, Civil Rights Division, to be of national interest, or as required by statute. The Civil Rights Division must provide authorization prior to indictment, information, or complaint.

[updated April 2018]


8-3.300 - Neutral and Objective Criteria for Guiding Prosecutorial Discretion

Government Attorneys shall enforce 18 U.S.C. § 249 in a neutral and objective manner. All prosecutions shall comport with the Principles of Federal Prosecution set forth in USAM Chapter 9-27.000. Attorneys for the government are particularly instructed to follow the dictates of USAM 9-27.260, which prohibits attorneys for the government from being influenced in making prosecution decisions by any subject's race, religion, sex, national origin, or political association, activities or beliefs. In addition, government attorneys should not be influenced by a subject, victim, or witness’s sexual orientation, gender identity, or disability, except to the extent such characteristic is relevant to a determination whether the statute has been violated.

 

Section 249 requires that attorneys for the government consider whether evidence is sufficient to prove that a criminal act identified by the statute occurred because of the actual or perceived race, religion, gender, national origin, sexual orientation, gender identity, or disability of any person. In no case, however, shall the government attorney be influenced by his or her own personal feelings concerning the subject or the subject’s associates; the victim or the victim’s associates; or a witness or a witness’s associates. Nor shall the attorney for the government be influenced by the effect the decision to prosecute (or not to prosecute) may have on the attorney’s own professional or personal circumstances. See USAM 9-27.260. No attorney for the government may make prosecution or declination decisions based solely upon the speech or expressive conduct of a subject, victim, or witness. Nor shall any attorney for the government make such prosecution or declination decisions based solely upon such a person's affiliation with any group advocating for or against rights of persons with the characteristic identified by statute. Such factors may be considered only to the extent that they inform a reasoned, neutral decision about whether § 249—or any other criminal statute—has been violated.

 

In choosing to pursue a prosecution under this statute, the primary responsibility of Government attorneys shall be to seek justice. A government attorney shall file only those charges which he or she reasonably believes can be substantiated at trial through admissible evidence. Charging and declination decisions should be made based upon the facts and totality of the circumstances in each individual case.

[updated March 2018]

Updated April 11, 2018