Criminal defense
Federal Civil Rights Crimes in Miami: Color of Law and FACE Act Charges
18 U.S.C. s. 242 makes it a crime for someone acting under color of law, usually a police or corrections officer, to willfully deprive a person of a constitutional or federal right. 18 U.S.C. s. 248, the Freedom of Access to Clinic Entrances (FACE) Act, makes it a crime to use force, threats of force, or physical obstruction against people obtaining or providing reproductive-health services, or against people exercising religious freedom at a place of worship, and to damage those facilities. We defend people charged under these laws regardless of their views or their side of any issue.
Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012, in state and federal court. Our office answers 24 hours a day.
Deprivation of Rights Under Color of Law (s. 242)
What the Government must prove (11th Cir. Pattern Instr. O8, Elements):
- The defendant deprived the victim of a right protected by the Constitution or federal law, such as liberty without due process of law.
- The defendant acted, or claimed to act, under color of state law.
- The defendant willfully exceeded and misused or abused the defendant's authority under state law.
Acting "under color of state law" means exceeding or abusing lawful authority while claiming or pretending to perform an official duty. A person who is not an official can be convicted if the Government proves they willfully participated with officials in the misuse of authority.
Penalties: up to 1 year; up to 10 years if bodily injury results or a dangerous weapon, explosives, or fire is used or threatened; up to life, or death, if death results or the acts include kidnapping, aggravated sexual abuse, or an attempt to kill.
FACE Act (s. 248)
Intimidation or injury of a person (Pattern Instr. O10.1, Elements): the defendant used force, a threat of force, or a physical obstruction to intentionally injure, intimidate, or interfere with the named person, and did so knowingly and because the person was or had been providing or obtaining reproductive-health services.
Damage to a facility (Pattern Instr. O10.2, Elements): the defendant intentionally damaged or destroyed the facility, knowingly and because it was being used to provide reproductive-health services.
The statute also protects people exercising religious freedom at a place of religious worship, and places of worship from damage. "Physical obstruction" means making entry or exit impassable, or unreasonably difficult or hazardous.
Penalties: first offense up to 1 year; second offense up to 3 years. For an offense involving exclusively a nonviolent physical obstruction, up to 6 months and a $10,000 fine for a first offense, and up to 18 months and a $25,000 fine after that. Up to 10 years if bodily injury results; up to life if death results. The pattern instruction's notes state that when only an exclusively nonviolent physical obstruction is charged, there is no automatic right to a jury trial.
Defense Themes
- Willfulness (s. 242). The Government must prove a willful abuse of authority, not a mistake or an accident.
- Fair warning (s. 242). The instruction's notes explain that the conduct's unlawfulness must have been apparent under existing law, giving fair warning.
- Within lawful authority. If the officer acted within the limits of lawful authority, there was no deprivation.
- Protected expression (s. 248). The statute itself says it does not prohibit expressive conduct, including peaceful picketing or other peaceful demonstration, protected by the First Amendment.
- Motive and knowledge. The Government must prove the defendant acted because of the protected activity.
- Force, threat, or obstruction. Being present, praying, or speaking is not the same as blocking an entrance or using force.
What to Do First
- Do not give statements to internal affairs, the FBI, or other agents without a lawyer.
- Preserve body-cam, video, and reports.
- If you receive a target letter or subpoena, call us immediately.
Why Choose Dennis Gonzalez Law, P.A.
- Former Miami-Dade prosecutor.
- Defending people since 2012.
- Super Lawyers recognition and an Avvo Rating of 10.0.
- Bilingual office — se habla español.
- We answer 24 hours a day. Call (305) 209-0384.
Frequently Asked Questions
Is protesting outside a clinic or a church a federal crime?
Not by itself. The FACE Act targets force, threats of force, physical obstruction, and property damage. Peaceful protest protected by the First Amendment is excluded by the statute's own terms.
Will my case be in federal court?
Yes. These are federal charges, prosecuted in federal district court. See Federal Crimes.