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Criminal Informant Law, Policy, and Research

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“Outrageous government conduct” in stash-house stings

November 24, 2014 by Alexandra Natapoff

A federal judge has dismissed a conspiracy indictment against a defendant accused of participating in a drug robbery in which the ATF, working with a confidential informant, set up an elaborate and imaginary stash-house robbery sting.  Courts have traditionally been slow to invoke the “outrageous government conduct” doctrine, which protects defendants against government operations that are “grossly shocking” and that “violate the universal sense of justice.”  But these increasingly common stash-house stings have brought the issue to the fore.  See L.A. Times story here.

In this case, the Court distinguished between permissible government efforts to infiltrate criminal organizations, and “manufacturing crime” in order to generate convictions.   From the opinion:

“The Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.”

In particular, the Court objected to the fact that the ATF  knew nothing about the defendant Antuan Dunlap until he was brought into the scheme five days before the alleged robbery.

“Allowing after-the-fact knowledge . . . in a situation like this creates a perverse incentive for the Government. It encourages the government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that a particular person has committed similar conduct in the past.”

While this case hinged on the fact that the government manufactured the robbery sting from whole cloth (the Court noted dryly that the total amount of drugs taken off the streets in such stings is “zero”), like many such cases the sting depended on a criminal informant who brought the defendants  to the government in the first place, and kept the operation going.  This model–of an undercover agent and/or an informant cooking up nonexistent crimes–may be coming in for new scrutiny.

Filed Under: Drug-related, Informant Law

HuffPost on DEA snitching debacles

November 10, 2014 by Alexandra Natapoff

In a two-part series about “the sketchiest things the DEA has done while waging the war on drugs,” informant debacles take the lead in this Huffington Post article.  Here are a few of the headlines:

-The DEA once turned a teenager into a drug kingpin so he could act as an informant.

-The DEA allows informants to break the law, but have no records as to how often it happens.

-One of America’s most notorious terrorists once served as a DEA informant.

-The DEA strung one informant along for 20 years with the promise of citizenship. She still hasn’t received it.

Filed Under: Drug-related, Families & Youth, Immigration, Informant Crime

DEA found liable for failing to protect its informant

October 14, 2014 by Alexandra Natapoff

In an unusual case, the U.S. Court of Federal Claims has held the DEA liable for over $1 million in damages for failing to protect its informant, the “Princess.”  The Court held that the DEA “breached an implied-in-fact contract and its duty of good faith and fair dealing” when it compromised the informant’s identity which led to her kidnapping and the worsening of a severe medical condition.   Opinion here.

Professor Stephen Carter wrote about the case in this article:  How the DEA Ditched an Informant, and he writes: “It was the DEA’s repeated bungling that essentially blew her cover. Then, after her release, she developed a chronic medical condition that would require increasingly expensive care. The DEA refused to help out. She therefore brought an action claiming breach of contract. In particular, she argued that the DEA, in hiring her as an informant, had agreed to protect her.  It broke that promise.”

It’s an important decision because courts often find that the government does not have a duty to protect its informants.  See this post.

Filed Under: Drug-related, Incentives & Payments, International, Threats to Informants

Lowell, Mass. police sued for informant misuse

September 24, 2013 by Alexandra Natapoff

The city of Lowell, MA, is being sued, along with Officer Thomas Lafferty, for permitting the longterm misuse of informants who allegedly planted drugs on innocent people. Stories from the Boston Globe and the Lowell Sun here, here and here. Lowell has been under scrutiny for its informant policies: earlier this year a prosecutorial review cleared Officer Lafferty of wrongdoing in connection with his informant practices.

Plaintiffs harmed by informants often have a difficult time holding government actors and agencies responsible in court, since it can be hard to show that the government authorized the informants’ bad behavior. For a prominent counter-example, see Estate of Davis v. U.S., 340 F.Supp.2d 79 (D. Mass. 2004) (describing a variety of legal theories under which the FBI might be held liable for murders committed by their informants Whitey Bulger and Stephen Flemmi). With growing scrutiny of and information about the government-informant relationship, the law in this regard may be due for a change.

Filed Under: Drug-related, Informant Law, Innocence, Police

San Francisco police use violent career criminal as informant

May 8, 2013 by Alexandra Natapoff

The San Francisco Weekly and the Investigative Fund of the Nation Institute just released this indepth story about the SFPD’s use of a high-level gang leader as an informant over several years: Cover of Darkness: S.F. Police turned a blind eye to some of the city’s most dangerous criminals–who were also some of their most trusted soures. The story documents the clash between the S.F. police who protected their violent source in violation of their own policies, and the federal agents who ultimately arrested him. The debacle elicited scathing criticism from former law enforcement. From the story:

Thirty-year law enforcement veteran Chuck Drago and former police commissioner Peter Keane both believe that the existence of rogue informants for SFPD’s specialized Gang Task Force and Narcotics Bureau indicates serious flaws in the department’s internal checks and balances. (The SFPD’s Narcotics Bureau, Gang Task Force, and Media Relations Office wouldn’t comment on the department’s handling of violent informants for this story.) “Somebody is dropping the ball in management,” says Drago. “SFPD have let loose an unguided missile on the public” by allowing dangerous men like Sandoval (and, as we’ll see, at least one other) to stay at large in spite of their offenses, says Keane. “No modern police force with any professionalism engages in that sort of practice anymore.”

Filed Under: Drug-related, Incentives & Payments, Informant Crime, Police

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