Government legal actions - civil or criminal? I was reading this overview of the differences between civil and criminal cases and they state Civil cases usually involve private disputes between persons or organizations. Criminal cases involve an action that is considered to be harmful to society as a whole. Followed by Individuals, corporations, and the federal government can also bring civil suits in federal court claiming violations of federal statutes or constitutional rights. For example, the federal government can sue a hospital for overbilling Medicare and Medicaid, a violation of a federal statute. That seems strange to me, why wouldn't stealing from the government be considered a criminal case? I suppose the answer might be, that's just the way the statute is written. In which case, my question would be, why are some things that are wrong involving the government considered to be part of civil or criminal law?
Civil litigation involves general causes of action that are available to anyone, including both private parties and the government. Civil courts are designed primarily to provide restitution to the injured party. Criminal courts exist for governments to exercise their police powers: specific, limited authority held only by the government. The principal purposes of criminal law are...well, they're debated, but broadly speaking, it's to punish and/or rehabilitate the criminal and deter future criminals. Because criminal conviction can result in jail time and even the death penalty, there are more stringent procedural protections accorded to criminal defendants than there are to civil defendants. So when the government's goal is to recover damages, it's easier for them to use the less burdensoome civil procedures, just the same as anyone else would. Let me give you an example. Someone steals your identity and runs up $100,000 on your credit card. You call the police, and they find someone they think is the guy. To convict him, the police must convince an entire jury panel that he did it, beyond a reasonable doubt--a high standard. He pleads the fifth, and without his testimony, the police may not succeed. If they do, he will be sent to jail, and he may also be ordered to give part or all of your money back. If the case is weak, however, the police may not want to spend their limited time on it--and that's their call, not yours. (This also applies to government agencies; only law enforcement can bring a criminal case, not any government agency.) However, you can also file a civil lawsuit. In that lawsuit, depending on the jurisdiction, you may only need to convince some of the jury--civil verdicts don't always have to be unanimous. You may even just face a judge, with no jury. And the legal standard is a "preponderance of the evidence," which in layman's terms just means "more likely than not"--a much easier thing to prove. Because the Fifth Amendment doesn't apply to civil litigation, you may even be able to argue before the jury that the defendant's refusal to testify suggests he's guilty. In summary: civil lawsuits use different rules and procedures, which may make it easier to recover money (or get other civil relief, such as an injunction) in cases where that's the goal. These courts are open to anyone, including the government. But if the government wants to use its special police powers to put someone in jail or get other criminal relief, they have to use the stricter criminal rules and procedures.
State crimes must be prosecuted by state prosecutors in state courts. Federal crimes must be prosecuted by federal prosecutors in federal courts. hszmv's answer describes the DOJ's policy where there is overlap. In Indian country (this is a term of art in U.S. law), jurisdiction is much more complicated. In brief, there is often exclusive tribal jurisdiction when the alleged offence has an Indian accused and Indian victim. For a listed set of major crimes, jurisdiction is exclusively federal (except in states where that jurisdiction has been granted to the states), even if incorporating as federal law the state's definitions of particular crimes.
There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice.
Generally, the legislature is not restricted to passing laws that are a good idea. This has been remarked on by the Supreme Court (in Justice Stevens's concurrence, emphasis added): But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.” There are some limits: for one thing, the law must pass the rational basis test, which, while extremely favorable to the legislature (Congress could probably ban coffee consumption, for instance), does impose some limits and might result in at least some of your examples being struck down—I cannot imagine a court finding that the government had a rational basis for taxing everyone 120% of their income, for example. However, the states do have a recourse in many cases, especially if Congress were to reduce the penalties for crimes: most &quot;common&quot; crimes (assault, battery, murder, theft, etc.) are state crimes, so Congress wouldn't have the power to change the penalties for those. Most cases where these things become federal crimes involve conduct affecting multiple states, and the person committing the crime would likely also commit at least one state crime. States also aren't required to assist the federal government in its enforcement of federal law. For instance, quite a number of states believe that the federal prohibition of marijuana is unjust, and won't enforce those laws within their boundaries.
The general rule, in US courts, is that a person (or organization) can only sue if that person has actually been harmed in some way by the actions of the person or entity to be sued. This is called having standing. In some cases a law specifically grants standing more widely than the usual rule would. For example, some state elections laws grant standing to any voter to challenge certain kinds of procedural violations. In some countries there are special courts in which governmental actions (or inaction) alleged to be in violation of law can be challenged. In the US there is no such special court, such challenges are brought, if at all, in the form of ordinary lawsuits brought by individuals, groups, or organizations. Sometimes a person who has actually been injured by a governmental action must be found in order to mount a legal challenge to that action. There are other mechanisms than lawsuits which may be used to force compliance with law. An official who is acting improperly may be impeached, convicted, and removed from office. And non-compliance may be politically unpopular, and lead to a change of administration or to a legislator not being re-elected. But of course neither of those remedies always works. In some cases one part or agency of the government can sue another part or a specific official. The law may explicitly provide for this, or a court may declare such a suit to be permitted. In some cases there is apparently no way to force a legal settlement of a dispute. For example, the US Federal constitution has an &quot;emoluments clause&quot; which essentially says that the President shall not accept payments from foreign rulers or governments. It was apparently intended as a sort of anti-bribery provision. No US court has ever enforced it, and recent cases seem to suggest that impeachment is the only way to enforce it. (It seems that this is incorrect, and a better example is needed.) The current US system is imperfect (as is every other system I know of, although in different ways). The reason for the standing rule is that if everyone who felt that something wrong was being done, even if not to him or her personally, could sue, the courts would be totality overrun with such suits, and much of government would have no time to do anything but to defend such suits. That is because almost every governmental action offends or angers someone, even if it does not do that person measurable harm. Limiting suits to cases where the plaintiff has standing is a key method of keeping the system in check. The US doe3s not have any overriding monitor agency which can sue for any improper government action. If it did, who would keep that agency in its proper bounds?
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.
As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful. This isn't quite right. The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a &quot;well-established&quot; constitutional right. A rule of law is &quot;well-established&quot; when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional. This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law. What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation. One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations. The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an &quot;objective&quot; test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented. A police officer who acts without actually knowing the law does so at his or her peril.
The government cannot seize property because a person residing at that property has a tax debt: the debtor has to have a legal interest in the property, which you say you don't have. The government can seize property under the practice of civil forfeiture, which is a legal dispute between law enforcement and property – the simplest way to put it is that the property itself has &quot;done wrong&quot; (is involved in illegal activity). That's not what tax debt is. It is possible for the state to seize property in error, so just because the state makes a mistake somehow does not mean that the state cannot file the paperwork and seize the property if the owners ignore the summons.