Roger Golubski is back in federal court on Monday for a hearing to determine if he should remain in custody or be released on bond. The former Kansas City, Kansas, Police detective is accused of sexually assaulting two women — but he faces charges of depriving them of their civil rights under federal law.

A federal indictment unsealed on Thursday charged former Kansas City, Kansas, Police detective Roger Golubski with civil rights violations for sexually assaulting, kidnapping or attempting to kidnap two women more than two decades ago.

Golubski was arrested by FBI agents at his Edwardsville, Kansas, home on Thursday morning. He was arraigned in federal court in Topeka that afternoon.

A federal magistrate judge will hold a hearing on Sept. 19 to determine whether Golubski should remain in custody or be released on bond.

The indictment contains six counts, each of them charging Golubski with under 18 U.S.C. Section 242, a federal statute making it a crime for government officials, including law enforcement officers, to deprive a person of federally protected civil rights.

The offense is punishable by imprisonment ranging up to a life term, or even the death penalty, depending upon the circumstances of the crime and the resulting injury, if any.

In an unusually graphic 25-page motion filed on Friday, prosecutors fleshed out the bare-bones indictment, revealing details of the alleged sexual assaults, as well as details about assaults Golubski allegedly committed against seven other women.

The motion portrays Golubsk — who worked for the Kansas City, Kansas, Police Department from 1975 until his retirement as a captain in 2010 — as a a cop who relentlessly exploited vulnerable Black women for sex and who threatened to imprison or murder them or their relatives if they ever told anyone what he did.

Why was Golubski charged with civil rights violations rather than sexual assault or kidnapping?   

Sexual assault and kidnapping are crimes under state law, as are other so-called street crimes, including murder. For a federal court to have what’s known as subject matter jurisdiction, the crimes in question must be federal crimes.

The civil rights laws are one way to bring Golubski under the umbrella of federal law.

“The federal government does not have general criminal jurisdiction,” explains Stephen McAllister, a former U.S. Attorney for Kansas and now a professor at the University of Kansas School of Law. “So there isn’t a federal crime of sexual assault or rape or even murder. Those are state law crimes that would be subject to state law.”

Why is Golubski being charged under federal law rather than state law?

The simple answer is because, for whatever reason, the state of Kansas — where Golubski’s alleged crimes took place — has chosen not to prosecute him.

One possible reason may be the statute of limitations for sexual assault in Kansas. Golubski is accused of sexually assaulting the two women in question more than 20 years ago, when Kansas had a five-year statute of limitations for rape and aggravated sodomy.

In 2013, Gov. Sam Brownback signed a law eliminating the statute of limitations for rape, but there are still statutes of limitations on the books for sexually violent crimes. For example, if the victim is younger than 18, charges must be filed 10 years after the victim’s 18th birthday, or one year from the date the suspect’s identity is conclusively established by DNA — whichever is later.

As McAllister notes, however, the sexual assaults Golubski allegedly committed would be deemed to have violated the victims’ constitutional right to bodily integrity under 18 U.S.C. Section 242, the federal law he’s charged with violating.

“And because these are sufficiently serious in nature, there’s no statute of limitations on these civil rights violations,” McAllister says.

Are there any other reasons the state might have chosen not to prosecute Golubski?

Possibly. Because Golubski is a longtime Kansas City, Kansas, police officer, prosecuting him at the state level could prove difficult.

“He was a law enforcement officer for so long, he has connections all through the Kansas system who covered for him,” says Sean O’Brien, a professor at the University of Missouri-Kansas City School of Law.

O’Brien and his law students helped develop evidence that was used to exonerate Lamonte McIntyre, who served 23 years in prison for a double murder he did not commit. Golubski was the lead investigator in that case, and key witnesses said he pressured them into giving false testimony that implicated McIntyre.

O’Brien points to a conspicuous example of the kind of cover he says Golubski received from his fellow officers: The former Kansas City, Kansas, chief of police, Terry Zeigler, who was a partner of Golubski’s before he became police chief, has claimed in statements to news outlets that he was unaware of Golubski’s allegedly criminal activities.

“If you look at his statements in the newspaper, he’s still defending Golubski,” O’Brien says. “And he’s very critical of (Wyandotte County District Attorney) Mark Dupree for stepping up and doing the right thing for Lamonte McIntyre … So, I mean there might be concerns about retaliation and things like that.”

McAllister, who pushed for a federal investigation of Golubski in 2019 when he was U.S. Attorney, says the FBI had looked into Golubski’s activities previously but never had the full backing of the U.S. Attorney’s office before then.

“I kept seeing these reports of how the KBI (Kansas Bureau of Investigation) turned over material to the feds, but I’m not really sure what that is, and it certainly was not anything that started our investigation,” McAllister says.

What elements would federal prosecutors have to prove to convict Golubski?

To obtain a conviction under 18 U.S.C. Section 242, prosecutors must prove three elements:

• The defendant acted “under color of law”
• The defendant acted “willfully”
• The defendant deprived a person of rights under the Constitution or federal law or subjected a person to different punishments because of that person’s race, color or immigration status

A person acts under color of law, according to the Congressional Research Service, “when they act with either actual or apparent federal, state, or local government authority.” That would include police officers, even if their conduct was not actually authorized under state or local law.

As the Congressional Research Service notes, a leading U.S. Supreme Court case on the matter involved a Georgia sheriff who arrested a Black man on suspicion of theft and then beat him to death. The sheriff argued that he was not acting under color of state law because the killing was illegal under Georgia law.

The court rejected that argument, finding that “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.”

Is it unusual for federal prosecutions to be brought in lieu of state prosecutions?

One of the very reasons statutes like 18 U.S.C. Section 242 were enacted in the first place was to allow for federal prosecutions when states could not or refused to prosecute. Section 242 was enacted shortly after the Civil War as a way to enforce the protections of the 14th Amendment, which states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

“There was a push to adopt federal laws that would allow for federal prosecutions where the states were simply not prosecuting,” says Mark Johnson, a lawyer with the Dentons law firm in Kansas City. “That’s why you have civil rights statutes that allow for prosecution against individuals who are guilty of violent crimes, which are usually prosecuted by the states, but for one reason or another the state is not prosecuting those persons.”

One of the most famous examples, depicted in the movie “Mississippi Burning,” is the federal prosecution for civil rights violations of the suspected killers of three civil rights workers — James Chaney, Andrew Goodman and Michael Schwerner — in 1964. After local officials refused to prosecute, federal prosecutors charged the defendants under 18 U.S.C. Section 242.

Charges under 18 U.S.C. Section 242 tend to be used most often in cases involving excessive use of force by police. For example, after police officers involved in the arrest of Rodney King in 1991 were acquitted by a Los Angeles County jury, federal prosecutors charged them under the statute.

More recently, the Department of Justice announced that a federal jury convicted a St. Paul police officer named Brett Palkowitch under Section 242 for “using excessive force against an unarmed civilian.”

Such cases are rare, though. The Transactional Records Access Clearinghouse, or TRAC, at Syracuse University, reports that in 2019, the last year for which figures are available, federal prosecutors brought Section 242 charges in just 49 cases in the United States.

“This compares with 184,274 total federal prosecutions last year,” TRAC said. “Thus, these cases represent just a minute fraction of offenses that are prosecuted — only 27 out of every 100,000 prosecutions or 0.027 percent.”

Which means that the charges against Golubski, while not unprecedented, represent a very rare instance in the United States of a police officer being charged under 18 U.S.C. Section 242.

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