ATF Goes On Tour To Teach Journalists That Cops Are Usually Right When They Kill Someone

from the view-from-the-cop-shop-journalism dept

The ATF (the accepted not-actually-an-acronym for the Bureau of Alcohol, Tobacco, Firearms and Explosives) is back on its periodic charm offensive. This time the charm seems a bit more forced, as citizens and governments all over the nation are aggressively questioning force use by law enforcement officers.

The murder of George Floyd by Minnesota police officer Derek Chauvin prompted nationwide protests targeting police violence. In apparent response to this public reckoning, the ATF has been inviting members of the press to try out its VR shoot-a-thon in hopes of convincing them (and the public reading these reports) that most killings are justified.

This tradition appears to date back to late spring of this year. It's a calculated play for deference from journalists. By showing them how difficult it can be to make split-second decisions in potentially deadly situations, the ATF is hoping to head off questioning of officers' actions during shootings by police officers. This, of course, glosses over the part where officers are supposed to be better at this sort of thing than non-cops -- you know, the "training and expertise" they cite so often when seeking warrants or defending against allegations of rights violations.

Here's one use-of-force seminar the ATF threw for Arizona journalists in May of this year. At least at this one, reporters tried to get something other than standard copaganda out of the trainers.

[A]t Wednesday's training agents didn't want to go into why, on a national level, African Americans and Latinos are more likely to be shot to death by police.

"I think there's a lot that goes into that," [ATF Special Operations Division Deputy Chief Paul] Massock said. "I would tell you that the number one issue that goes into decision-making on the part of an officer is the behavior of the individual that they're dealing with. Period."

Well, that's simply not true. If it were, people wouldn't be asking these questions. The difference in police response to minorities is not only noticeable, it's undeniable.

Here's another one, held in Pittsburgh in June. The tail end of the article catches the ATF somewhat tipping its hand.

Increasing the understanding of those situations and the laws surrounding them was the intention of going to the media with this presentation, Mr. Massock said.

“We would like to have — if not an agreement — at least an understanding of each other,” he said.

And by "understanding," the ATF means "less questioning."

The same presentation was held in Boston in August, presented under the-view-from-the-blue-line headline "How Law Enforcement Agents Decide to Use Deadly Force." And another questionable assertion was made by Deputy Chief Massock.

Ideally, an interaction never has to get violent, for everyone's sake.

“We’re husbands, wives, fathers, mothers in those communities, so we're already a part of the community and we want to make sure we have that understanding and good relationship while we’re there,” Massock said.

That's undeniably false. The ATF isn't a member of any community, strictly speaking. And its efforts tend to focus on minorities, using borderline entrapment to talk poor people into robbing fake stash houses that contain no drugs or money… and then using the quantity of imaginary drugs to trigger mandatory minimum sentences that begin at 20 years of imprisonment. No drugs are taken off the street. No guns are recovered. And no actual drug dealers are brought to justice.

And, extending this line of reasoning to cops, one of the greatest obstacles to community-oriented policing is the fact that most cops live miles away from the neighborhoods they police. This results in them treating the areas they serve as just places they work (at best) or enemy territory they patrol (at worst).

The ATF's latest presentation -- this one given in El Paso, Texas -- has received the most press. El Paso journalists were invited to participate but the Border Report's coverage of the event is the one that has been spread across the nation in its original, uncritical form. That's possibly because local coverage from El Paso news outlets was so bland as to be entirely forgettable.

The Border Report's headline also traveled around the nation unaltered: "Trainers show media the 'other side' of deadly shootings and use of force by police."

And, again, trainers made statements that are facially ridiculous but go unchallenged.

The ATF training includes dash-cam videos of officers who got shot because they did not perceive a person as threatening or relied on voice commands to get someone to drop a gun. “People talk about de-escalation, but de-escalation takes two persons to work. How many times does the officer have to shout, ‘drop the gun!’” Massock said.

Ah, yes. It's the person without the training and expertise who's supposed to know exactly how to react when cops are shouting at them. And I'm not sure if just yelling the same thing over and over again is really "de-escalation." It sounds more like cops trying the only thing they really know how to do, since de-escalation has never been a priority for law enforcement agencies.

Also, when it's a judgment call following police violence, it should be assumed it's the officers that are in the right.

When officers appear to be predisposed to use force against someone it’s often because the 9-1-1 operator or police dispatch gave him information that puts him on his toes. “The officer has all the facts. Citizens often only see the end result. The officer has knowledge and experience that the general public does not,” Massock said.

Trainers and experts talking about training and expertise, and yet completely unwilling to apply either to difficult questions. After ducking a question about the recent beating of an unarmed homeless man by El Paso PD officers ("we're not familiar with the case"), the trainer went on to enlighten reporters with some curricular logic.

Massock said an officer or a criminal may fire five to six shots per second in the heat of battle, which answers the question, “why did the cop have to shoot him so many times?”

Why did the cop have to shoot so many times? Because the cop shot so many times. Investigation closed. It's Confirmation Bias On Tour! Journalists are invited to attend, immerse themselves in a single narrative, and expect to be ignored if they ask any tough questions. This isn't education. It's PR work being performed for the benefit of violent cops everywhere, all funded by citizens' tax dollars.

Filed Under: atf, journalists, police shootings

DOJ Says Federal Agents Will Start Wearing Body Cameras

from the beware-the-asterisk-tho dept

At long last, Department of Justice agencies are joining the 21st century. Years after many local law enforcement agencies (with budgets that amount to rounding errors for DOJ components) have adopted body cameras, the DOJ is finally getting into the act.

Today, the Department of Justice announced the launch of the first phase of its Body-Worn Camera Program that requires department law enforcement personnel use body-worn cameras (BWCs) during pre-planned law enforcement operations. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Phoenix and Detroit Field Divisions began using BWCs today during these pre-planned operations. Over the course of the next several weeks, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI) and the U.S. Marshals Service (USMS) will begin the first phase of their BWC programs. The department’s plans include a phased implementation of BWCs, and rely upon Congress to secure the necessary funding to equip agents nationwide with BWCs.

Caveats, mfers. Caveats. "Pre-planned operations." Let's hope this makes up the bulk of federal law enforcement's interactions with the general public. This means that while federal agents may be wearing body cameras, they won't be using them to record off-the-cuff convos/searches/seizures/arrests that may come up during day-to-day business.

It's a start. It's a start years after the fact. While local cops were obtaining cameras, the DOJ -- as recently as 2015 -- was saying it would not do business with any cop shops rolling cameras during joint operations.

The obvious solution for cops seeking federal help during investigations would be to uninvite agencies unwilling to roll with rolling cameras. But it probably never worked out this way. Given law enforcement's love of opacity, local cops probably loved having a reason to remove their cameras while doing citizens dirty with their federal partners.

It took another five years before the DOJ agreed to allow federal agents tag along on raids and investigations involving local officers wearing body cameras. Now, less than a year into Attorney General Merrick Garland's leadership, federal agents have been ordered to start wearing body cameras.

Keep these public-facing, super-enthusiastic statements in mind when the lawsuits and investigations start rolling in, accusing federal officers of copying their local level compatriots by "forgetting" to activate cameras or being unable to retrieve recorded footage when demanded by plaintiffs in civil rights lawsuits or defendants in criminal trials.

This sounds like a lot of people being forced to smile at gun camera-point:

“ATF welcomes the use of body worn cameras by our agents,” said Acting Director Marvin G. Richardson of the ATF. “The department’s policy reflects ATF’s commitment to transparency as we work to reduce firearm violence in our communities.”

“The Drug Enforcement Administration is committed to the safety and security of the people we serve, our agents, and task force officers,” said Administrator Anne Milgram of the DEA. “We welcome the addition of body worn cameras and appreciate the enhanced transparency and assurance they provide to the public and to law enforcement officers working hard to keep our communities safe and healthy.”

“The FBI remains committed to meeting the need for transparency,” said FBI Director Christopher Wray. “Phasing in the use of BWCs is another important way for us to meet that need.”

Hahahahahahahahahaaaaaaaaaaaaaaa...

OK.

Let's break this down.

The ATF welcomes no additional "transparency." Never has. Never will. And its efforts to "reduce firearm violence" are pretty much entrapment that targets impoverished minorities who the ATF feels will be much easier to bully into lengthy sentences.

The DEA doesn't care about the people it serves. It only cares about racking up incredibly cheap wins in a war it has been losing since its inception. Elvis Presely was given a Bureau of Narcotics and Dangerous Drugs (the DEA predecessor) badge by Richard M. Nixon. Talk about setting yourself up for failure. The DEA does not keep communities safe and healthy. It cannot pretend otherwise.

And fuck the FBI. "Committed to meeting the need for transparency." Really? It's been almost 1,200 days since the FBI promised to correct its count of encrypted devices in its possession -- a number it had overstated by at least 5,000 devices during its neverending agitation against allowing innocent citizens to protect their devices and communications from outsiders. That's just one refutation of the FBI's allegiance to "transparency. " The rest of it is contained in the agency's litigious refusal to hand over documents in response to public records requests.

The FBI not-so-secretly wishes it was the CIA, if not the NSA itself. It does not care about transparency. And it will accept these cameras begrudgingly, ensuring they're turned off any time agents perform a "custodial interview" or engage in anything it considers to be national security related.

While it's great the DOJ says body cams are go, the actual implementation may be far less underwhelming than the GO TEAM TRANSPARENCY enthusiasm expressed in these public-facing statements. These agencies have operated under the public accountability radar for years. The addition of cameras won't change that much.

But let's not let our cynicism be used against us. They should have these cameras. And when footage goes missing or unrecorded in close cases, the benefit of doubt should be awarded to the non-moving (read: non-prosecutorial) party. If this happens often enough, we might finally see some meaningful deployment of cameras -- one that ensures officers are accountable to the people paying their paychecks.

Filed Under: atf, body cameras, dea, doj, fbi, transparency

Reverse Warrants Show Feds Sought Data On Thousands Of Police Brutality Protesters In Kenosha, Wisconsin

from the it's-ok!-the-NSA-said-this-was-cool-and-legal! dept

Is there anything law enforcement won't use geofence warrants for? The answer appears to be "no."

A recent Google transparency report shows exponential growth in the geofence (a.k.a. "reverse") warrant market, one that Google has inadvertently cornered by collecting more GPS info than any of its competitors. These aren't traditional warrants. Traditional warrants use probable cause to justify searches of places, people, and objects (like vehicles).

"Reverse" warrants are just that: a dragnet cast by cops to find a suspect in a pool of possibilities, most of whom are not criminals. Working backwards from a long list of GPS data points and cellphone information, investigators try to find the most likely suspect and then move forward again, this time using some actual probable cause. They're not always correct. And they seem largely unconcerned that demanding location data on hundreds, if not thousands, of innocent people perverts the process.

A recent report by Russell Brandom for The Verge shows the trend towards bulk collection continues. And, as reported previously, it involves federal agents who want to convert state charges to federal charges (using imaginative readings of the phrase "interstate commerce" to do so) to generate as much pain as possible for people who participated in protests against police violence, whether lawfully or not.

Protests in Kenosha, Wisconsin following the shooting of a black man by police quickly turned violent. Not only were businesses burned and destroyed, a 17-year-old interloper named Kyle Rittenhouse convinced his mom to drive him to Kenosha from his home in Antioch, Illinois. Once there, the armed Rittenhouse engaged in his vigilante fantasies, shooting three protesters, killing two of them.

The ATF was more interested in the arson, though. And it thought the best way to generate investigative leads was to gather information on thousands of protesters, almost every one of which did not start any fires.

A series of six newly unsealed warrants (1 2 3 4 5 6), some previously reported by Forbes, show a persistent effort to use Google’s location services to identify Android users in the vicinity of arson incidents.

Issued in quick succession on September 3rd, the warrants came from a team of 50 arson investigators from the bureau of Alcohol, Tobacco and Firearms, deployed to Kenosha to prosecute property damage cases connected to the protests. Using the warrants, The agents targeted seven different geographical zones, asking to identify anyone located within that area during a span that could stretch as long as two hours. The result was a kind of location dragnet, spread over some of the busiest times and locations in the first days of the protest.

The government wants haystacks. It firmly believes it can find needles. And it thinks it can do that often enough and with enough certainty no innocent hay will be treated like a criminal needle. That's insanely arrogant. The more data points you have, the more chances you have of picking the wrong one.

But maybe it really doesn't matter in these cases. After all, the DOJ and its components have proven more than happy to inflict collateral damage on protesters unhappy with the current state of law enforcement. If this ends in a few bogus arrests, does it really matter?

It might matter to the courts. A few judges have blocked these warrants, calling them vague and unconstitutional. And courts might be receptive to the arguments of those wrongfully arrested as a result of the use of these "reverse" warrants. The only probable cause the government has when it issues a geofence warrant is that it's likely Google houses the information it wants to collect. But it needs more than that. If all the government needed was the solid assumption a non-party/non-suspect possessed information it wanted, warrants could be completely unmoored from criminal investigations and used to grab any information the government has an interest in.

Those are legitimate concerns. Unfortunately, law enforcement doesn't share these concerns.

[One] warrant looks at a suspected arson of the Kenosha Public Library, based on lighter fluid and rags that were discovered in a northeast window well alongside minimal fire damage. Without direct witnesses to the fire, police set a two-hour window and a geofence covering the middle third of the downtown’s largest public park space. It was a significant span of time on the busiest night of the protest in an area that provided a natural meeting place for anyone who had taken to the streets that night.

I guess the ATF sees no harm in potentially rounding up several innocent protesters and subjecting them to facetime with federal agents -- federal agents who, by the way, can ring people up on charges simply for lying to them. The only thing standing between these warrants and some pretty ugly -- but inevitable -- outcomes is the courts. Google can anonymize information as much as possible, but follow-up demands are predicated solely on investigators' beliefs that they've found criminal suspects. How accurate those hunches are won't be discovered until they're in possession of identifying info -- info that can be traced back to the original dragnet supported by nothing more than the assumption grabbing all this data will allow investigators to continue their investigations.

Filed Under: 1st amendment, 4th amendment, atf, geofence warrants, kenosha, police, protests, reverse warrants, surveillance, wisconsin

Federal Agents Are Using A Reverse Warrant To Track Down Arson Suspects

from the starting-with-what-we-don't-know-and-working-our-way-backwards dept

Reverse warrants have been deployed again. And, again, Wisconsin law enforcement agencies are involved. The feds used a reverse warrant to track down robbers who hit a bank at a strip mall just outside of Milwaukee earlier this year.

The feds are at it again. This time it's the ATF and the targets are two people suspected of arson.

The "reverse" warrant affidavit [PDF] spends a great deal of time letting us know what Special Agent Thomas Greenwich knows: that phones generate a ton of location info using a variety of connections (WiFi, Bluetooth, cell towers) and this information tends to get hoovered up almost immediately by service providers. In this instance the target is Google and the ATF wants any records that fall within two geofenced areas surrounding the sites of two suspicious fires.

If there's any upside here, it's that the geofenced locations won't be sweeping in as many non-suspects as other reverse warrants we've seen. And it includes photos depicting the areas targeted by the non-targeted warrant, which helps judges (and interested citizens) see how much potential data the ATF is targeting.

There were two suspected arsons in Milwaukee, located less than 5 miles apart, occurring within three weeks of each other. Both started at the back of the houses and both used accelerants. And both houses had a common denominator: John P. Hunt. Hunt had been evicted from one address (4047 N. 7th) two weeks prior to the first fire, and had been trying to claim tools left behind by a deceased family member, which were stored at the second address (5915 N. 42nd St.). This included one unscheduled visit to reclaim the disputed possessions which had been sorted out by local law enforcement four days before the second suspicious fire.

Here are the geofence coordinates included with the affidavit:

The geofences here are about as limited as they can be, given the nature of the crime. These are much more constrained than others we've seen -- ones that cover entire blocks in heavily-trafficked areas.

That being said, there are still a few problems. First, coarse location data isn't precise enough to exclude people living in surrounding houses. The geofenced areas will also capture foot and road traffic that passed through the area during the time frame investigators are looking at.

Finally, there's the problem that simply does not ever go away, no matter how tightly-constrained the geofence is: these warrants work in reverse, providing law enforcement with location data on people who aren't suspected of committing criminal acts and allowing investigators to use a pile of non-suspicious data to develop reasonable suspicion.

This data request seems almost extraneous. The ATF already appears to have a couple of suspects -- ones well-known to both federal agents and the Milwaukee Police Department. The MPD executed a search warrant at the 4047 N. 7th Street address last summer (following "10-15 visits" to the house by MPD officers during that same summer), recovering "a large amount of narcotics and several firearms." John Hunt -- the person connecting the two torched properties -- was charged with several drug and gun-related offenses.

Given this fact, it would seem investigators might want to start with John Hunt and then work their way outward if that doesn't pan out. Instead, they're demanding location info on everyone in the area and then hoping to narrow this list of info down to the person (or people) they already suspect. Yes, it's always useful to have as much evidence in hand as possible before arresting someone, but that law enforcement desire needs to be weighed against the impact it will have on non-suspects just because they happened to connect to cell towers in the wrong place at the wrong time.

Filed Under: arson, atf, reverse warrants
Companies: google

Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone

from the five-finger-Fifth-Amendment-discount dept

It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect's fingerprints to a phone to unlock it.

[T]he document, issued on 18 April, Massachusetts federal district judge Judith Dein gave agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the right to press a suspect’s fingers on any iPhone found in his apartment in Cambridge that law enforcement believes that he’s used, in order to unlock the devices with iPhone Touch ID.

The warrant [PDF] authorizes ATF agents to "press the fingers (including the thumbs)" of suspect Robert Brito-Pina to the "Touch ID sensor of any Apple cellular phone" recovered during the search. Brito-Pina is suspected of buying and selling weapons -- neither of which are permissible given his felon status. The ATF apparently believes evidence of this will be found on Pina's iPhone.

There doesn't appear to be any limit on how many fingers the ATF can use to unlock the phone. The warrant says only that officers will decide which fingers to apply. Presumably, that means all of them (including thumbs), since there's no language limiting officers to a certain number of finger applications. The only thing preventing every finger from being applied during the search is the iPhone itself, which will require a passcode after five wrong fingerprint applications.

The phone's nexus is established pretty thoroughly in the warrant application, which much of the sting operation using an arrestee-turned-informant being carried out via text messages. The government moved to unseal the warrant five days after applying for it, suggesting it has already executed this warrant.

The weird thing about the warrant application, which thoroughly details the sting operation and the ATF's surveillance of the suspect, is it appears the swearing agent isn't actually sure Pina owns an iPhone.

Given the popularity of Apple brand devices, I believe it is likely that I will find Apple brand devices such as an Apple iPhone at the Target Location.

And, despite authorizing the agents to only use Pina's finger to unlock any recovered iPhones, the warrant still contains boilerplate stating agents may demand fingerprint applications from anyone at the searched residence.

In some cases, it may not be possible to know with certainty who is the user of a given device, such as if the device is found in a common area of a premises without any identifying information on the exterior of the device. Thus, it will likely be necessary for law enforcement to have the ability to require any occupant of the Target Location to press their finger(s) against the Touch ID sensor of the locked Apple device(s) found during the search of the Subject Premises in order to attempt to identify the device's user(s) and unlock the device(s) via Touch ID.

This case likely won't budge the needle on the Fifth Amendment question. At least, not yet. If Pina wants the evidence gleaned from the iPhone suppressed (assuming there is an iPhone), there may be further discussion of this crucial issue in the future. Most judicial decisions on the use of biometrics to unlock devices have sided with government, asserting that faces and fingerprints are "non-testimonial," even if they're the gateway to plenty of evidence that will be used against the defendant. But there have been a few judges who've taken contrary stances, so the issue is far from settled.

Filed Under: 4th amendment, 5th amendment, atf, fingerprints, massachusetts, search, unlock

Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings

from the more-of-this-please dept

The ATF's stash house stings are one of the worst things about federal law enforcement. And it's a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can't tell a judge how much terrorism to charge defendants with. The ATF stings -- involving imaginary drugs hidden in fictitious stash houses -- give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos -- automatically setting up defendants for 20-year prison terms.

Another victim of the ATF's stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF's stash house stings are racially-biased. There's some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.

Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he's making isn't the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996).

This is good news for Sellers. And it's potentially good news for others roped in by ATF stings. If he obtains information showing discriminatory motivation, minority suspects are going to have another way to fight these charges in court.

But the entire opinion is worth reading past the opening declaration in favor of Sellers. Judge Jacqueline Nguyen tees off on the ATF in her concurring opinion, pointing out biased enforcement is only a small part of stash house sting operations' problems.

While these operations do “not . . . reduc[e] the actual flow of drugs,”2 the government touts them as an important tool “to catch people inclined to commit home invasions.” United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal. 2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x 619 (9th Cir. 2014). But when the government fails to target known criminal enterprises or people suspected of engaging in serious crimes, the practice is highly questionable and raises troubling questions about race-based targeting.

There is no legitimate dispute that these stings primarily affect people of color, but the government has steadfastly resisted any defense attempt to determine whether enforcement is racially biased.

She goes on to point out the government outsources the target selection to informants -- ones who have their own interests to serve and protect. This makes it clear the ATF is searching for dangerous criminals to talk into fake stash house robberies. It's more than willing to take whoever -- which more often than not is a minority with no history of violent crime or armed robbery. From there, the government gets to decide how many years of a suspect's life it's willing to try to take away. Invariably, every fake drug stash is large enough to demand 20-year minimum sentences.

Then she gets right to the heart of the matter: of course the ATF's sting operations are racially-biased. They're based on a bunch of lies, which gives the ATF the opportunity to pick anyone as its fall guy. But the agency always seems to end up arresting the same sort of people.

Law enforcement agents, on the other hand, do not deal with a closed universe of criminal suspects. When conducting a reverse sting, literally anyone could be a target. See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the population of this country, there is an indefinite number of persons who dream of clever and unlawful schemes to make money. Does their dreamy amorality cast them all as fit candidates for a sting by their government?”). There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law. If law enforcement agents target potential stash house robbers in a race-neutral way, then the racial breakdown of targeted individuals would presumably closely mirror that in the community. If it doesn’t, then that’s potentially indicative that the agents or their informants are using discriminatory procedures.

This is what the ATF does dozens of times a year. It takes fake drugs and fake stash houses and turns them into real prison sentences. And, so far, it's been getting away with it. But it sounds like courts are beginning to tire of locking people up for unwittingly engaging in the ATF's charades. At some point, this will all come crashing down on the feds, but until then dangerous criminals will continue to walk the streets while down-on-their-luck nobodies serve their prison terms for them.

Filed Under: atf, bias, daryle lamont sellers, entrapment, jacqueline nguyen, stash house, stings

Federal Judges Says ATF Stash House Stings Are Useless And Ugly

from the in-which-the-ATF-is-informed-its-baby-is-neither-cute-nor-likable dept

A chief federal judge in Chicago has handed down a scathing opinion calling ATF stash house stings an "ends justifies the means" evil that needs to be "relegated to the dark corridors of our past." The opinion shuts the door on two defendants hoping to show the ATF's fake robberies of fake stash houses filled with fake drugs were racially-biased, but it does show even without the taint of bias, the sting operations are exploitative and useless. (via Brad Heath)

The opinion [PDF] has nothing good to say about the stash house stings. It opens with numbers that certainly appear to show racial bias and it doesn't let up from there.

It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District's adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent White. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law cannot be tolerated during these difficult times. It is time for false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.

[...]

Our society simply cannot accept a "win at all costs" mentality in the delicate world of law enforcement, which is ultimately dependent on proactive citizen involvement.

The judge then goes on to speak about the valuable work of taking firearms off the streets, but says that this job cannot, and should not, be performed through bogus sting operations -- even in an era where gun violence is seemingly more prevalent. Even when violence against citizens and (especially) law enforcement was at its peak nearly 100 years ago, the ATF never stooped to using complete bullshit to secure a steady stream of criminal defendants.

[E]ven during the low points of the great violence caused by the alcohol wars of Prohibition, the ATP did not seek to use "false alcohol warehouse" tactics against any ethnic organized crime groups to promote public safety. Instead, the ATP used solid investigative work to garner the great public respect of the Elliot Ness era that still lives today as the gold standard of law enforcement. This type of work inspires great public cooperation with law enforcement, unlike the false drug stash house cases before the Court.

Judge Ruben Castillo notes that many ATF sting cases -- like the two before him -- operate under the theory that roping in otherwise uninvolved citizens will somehow result in the seizure of illegal weapons. Some cases, obviously, do result in weapons being taken off the streets. Far more often, the only thing taken off the streets are people with little in the way of criminal records or cash, talked into taking down a fake stash house for a cut of a completely fabricated drugs and money. The fake amounts of drugs in the fake stash house are used to determine sentence lengths, with the ATF asserting -- without exception -- that the quantity of make-believe drugs discussed with sting victims is enough to trigger 20-year minimum sentences.

The judge points out that the government is lucky he's only considering the issues raised by the defendants: alleged Fifth Amendment violations predicated on the apparent bias in the ATF's stash house sting operations. Much of the 73-page opinion discussed expert opinions based on studies of the underlying facts of a decade's-worth of stash house stings. Some evidence of discriminatory selection exists, but it's undercut by most DEA stings being predicated on tips from confidential informants. In other words, maybe CI's are bigoted, but the operations themselves are not, despite a large percentage of defendants being minorities.

The trials of these two defendants will continue. But the concerns expressed by the judge suggest the ATF is no longer welcome to bring stash house sting prosecutions into Judge Castillo's court. This is only one judge of hundreds in the federal system, but it's another federal judiciary voice to add to those who've already expressed concern, if not actual dismay, at the ATF's sting operations.

Filed Under: atf, entrapment, stash house, stings

Another Stash House Sting Criticized By The Court... But Lengthy Sentences Left Untouched

from the zero-positive-contribution-to-society dept

The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government's tactics. And not without one judge appending a long rebuke to her reluctant concurrence.

Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house "containing" at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas' sting operations always include fictitious armed stash house guards, otherwise the ATF's involvement would be unnecessary.

The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.

Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior -- both during the sting and during the trial.

Judge Jane Stranch's concurrence clearly communicates her displeasure with ATF sting operations in general, even if it's tempered by her inability to move the dial in the appellants' favor.

Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.

This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It's not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.

Stranch goes on to note multiple courts have found the ATF's actions troubling. But, so far, they've been unable to do much to stem the flow of stash house sting cases into the nation's courts. They've also been unable -- with rare, rare exceptions -- to provide any sort of relief for defendants caught up in the government's fictitious drug robbery plans.

Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.

[...]

[I]t seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They're also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF's insistence on pretending there's mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.

This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.

Filed Under: 6th circuit, atf, own plots, richard zayas, stash house, sting

ATF Ran Illegal Mixed-Money Slush Fund For Years With Zero Oversight, Auditing, Or Punishment

from the no-one's-more-above-the-law-then-law-enforcement dept

The ATF isn't restrained by oversight. It's hardly restrained at all. It's made a business of fake stash house sting operations, where downtrodden suckers looking for cash are persuaded to rob a ficitonal stash house of its fictional drugs. The problem is the government then bases its charges on the amount of nonexistent drugs sting victims were told the fake stash house contained. In no sting operation was the "amount" of drugs lower than 5 kilograms -- the amount needed to trigger a 20-year minimum sentence.

Why is the ATF involved? Because every sting operation involves fictional armed guards, necessitating the use of illegally-obtained weapons by sting victims. Bang. More charges with lengthy minimum sentences.

When not pushing people into fake robberies, the ATF regulates alcohol, tobacco, and firearms. (Also explosives, but it makes the well-known acronym more than a bit clumsy.) To facilitate maximum price gouging by state governments, the ATF tries to break up untaxed cigarette sales.

It's this simple work that has propelled an accountability-free explosion in the ATF, most of it traced back to a single office in Bristol, Virginia, fronted by a quasi-legitimate tobacco distributor. From there, an appalling amount of illegal activity was participated in by ATF agents and officials.

Matt Apuzzo has put together an amazing story for the New York Times, sourced from interviews and public records requests -- one that will cause your jaw to drop lower the further you scroll down the page. As Apuzzo puts it, the operation began as a way to bust black-market cigarette sales. It ended up as something much more sinister: an ATF slush fund that mixed public and private money with zero oversight or statutory authority. If any agent needed anything -- from vending machines with cameras in them to credit cards for unquestioned expenses -- they went to Bristol. It was done in the government's name, but plenty of agents personally profited from the operation.

The spending was not limited to investigative expenses. Two informants made $6 million each. One agent steered hundreds of thousands of dollars in real estate, electronics and money to his church and his children’s sports teams, records show.

Federal law prohibits mixing government and private money. The A.T.F. now acknowledges it can point to no legal justification for the scheme. But far from reining in the spending, records show that supervisors at headquarters encouraged it by steering agents from around the country to Bristol.

As the money mixed, the spending increased. ATF officials in Washington sent agents to Bristol to obtain equipment, supplies, and spending money in order to bypass red tape. So many vehicles were requisitioned through Bristol the office had to set up its own leasing company. Hotel bills and gas alone ran nearly $25,000 a month. And yet, the DOJ never looked into the ATF operation or its incredible amount of spending. With public and private funds overlapping, it would have been a nightmare to audit. How much of a nightmare, no one knows… because no one ever tried. Unbelievably, the "accounting" for the ATF's oversight-less, mixed cash operation was left to a single bookkeeper using Quickbooks on her own computer.

As part of the sting, two informants helped pad the ATF's secret account by purchasing cigarettes directly from US Tobacco at $3 a carton and selling them back to the ATF for $17 a carton. Rather than this being a losing proposition for the ATF, the difference in prices allowed the ATF to dump another half-million into its secret Bristol account.

The ATF office was basically housing gangsters with hearts of ill-gotten gold at this point.

[ATF agent Thomas] Lesnak said he set the prices, allowing his informants “customary and reasonable” profits. Mr. Carpenter and Mr. Small were paid $6 million apiece in less than two years, according to court documents. Such huge sums would normally require special approval. But since the money came from the secret account, the A.T.F. officially paid them nothing.

Those around Mr. Lesnak benefited, too. The old tobacco warehouse — a $410,000 repurposed candy factory — was given to his church, property records show. A half-million dollars from the secret account was donated to local law enforcement agencies. Thousands more went to Mr. Lesnak’s children’s school. Mr. Lesnak handed out Blu-ray players and Xboxes to his son’s baseball teammates, one player recalled. The donations, Mr. Small said, were made at Mr. Lesnak’s insistence.

To keep his warehouse workers happy, records show, Mr. Lesnak handed out envelopes of cash — $500 to $700 a month, tax free. On an office casino trip, Ms. Davis testified, he provided money for gambling. Employees were given DVD players, televisions or freezers that arrived in the warehouse, records show.

The ATF's operation finally ran into trouble when US Tobacco began taking an interest in purchases tied to the agency. Concerned it was being used to facilitate something resembling a criminal operation (but run by law enforcement personnel), US Tobacco began looking into activities at its Bristol warehouse. This led to one of the greatest moments of combined irony and schadenfreude in human existence.

The operation ran until Stuart Thompson, a bookish Manhattan native, took over as chief financial officer at U.S. Tobacco. He repeatedly pressed the warehouse manager to explain the unusual supply of Palermos. No market existed for that many cigarettes, he said.

On March 8, 2013, the warehouse manager called Mr. Thompson. “He started telling me that A.T.F. was doing operations in our warehouse,” Mr. Thompson recalled.

Company lawyers descended on the warehouse, seizing everything. A tobacco company had just raided the A.T.F.

Despite all of this, no one involved has been prosecuted. The DOJ still hasn't attempted to audit the funds the ATF worked with, even while declaring the operation to be highly problematic. Everyone involved walked away unscathed. Even Agent Lesnak, who spearheaded the operation and set up the mixed-money slush fund, never received so much as an oral reprimand. I suppose the DOJ felt the 100 or so arrests resulting from the operation outweighed the illegal activity that went on for years under its nose.

The whole story is worth reading. It shows the ATF has the DEA's mentality: nothing matters but the job. Any and all illegal operations are forgiven in advance (and often in arrears) because doing the government's version of God' work involves breaking laws like omelet eggs and keeping oversight as far away as possible from day-to-day activities.

Filed Under: atf, slush fund, smuggling, tobacco

Research Shows ATF's Bogus Stash House Stings Target Poor Minorities, Do Almost Nothing To Slow Flow Of Drugs And Guns

from the wasting-taxpayer-money-and-federal-time dept

The ATF's sting operations have already drawn plenty of criticism. Not from law enforcement agencies who partner up with the ATF for easy busts or the DOJ which oversees them, but from almost everyone else, including federal judges. These stings result in government-made criminals who are led by undercover agents towards robbing fake stash houses of nonexistent drugs, cash, and weapons. The fun thing about the nonexistent drugs is it can be whatever amount ATF agents say it is. And that amount of drugs -- that exists nowhere but in the imagination of federal agents -- is used to determine lengths of sentences.

Judge Gerald McHugh trimmed back a sentence given a defendant caught in an ATF stash house sting, pointing out the crooked system allows prosecutors to play judge, jury and executioner -- all before the case even lands in court. As the judge notes, he has never run into a sting prosecution where the imaginary drug stash was below the statutory guideline triggering the longest sentences.

From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence.

Judge Otis Wright was even less kind, pointing out the government's standard operating procedure of goading desperate people into committing fake crimes that result in lengthy sentences. The feds then dangle plea bargains above their heads, hoping defendants will take the less onerous offer and skip the courtroom proceedings where the details of the stash house sting might be examined by skeptical judges and juries.

The end result of these stings? Nothing but people being locked up.

Zero. That’s the amount of drugs that the Government has taken off the streets as the result of this case and the hundreds of other fake stash-house cases around the country. That’s the problem with creating crime: the Government is not making the country any safer or reducing the actual flow of drugs. But for the Government’s action, the fake stash house would still be fake, the nonexistent drugs would still be nonexistent, and the fictional armed guards would still be fictional.... Instead, the Government comes close to imprisoning people solely because of their thoughts and economic circumstances rather than their criminal actions.

The other ugly truth about these sting operations is their consistent targeting of minorities.

A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

The ATF should be in the business of removing dangerous individuals from circulation. Instead, it preys on the less fortunate. Much like the FBI's continued material support of handcrafted terrorists, the ATF frequently has to provide the means, motive, plan, and pretty much everything else that might be required to rob a stash house.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings.

Drugs aren't being taken off the streets. The only weapons being seized are the ATF's. And plenty of truly dangerous people are still walking around while the ATF pushes minorities with money problems into plans composed of pure bullshit.

This poses more problems for the DOJ. It will at least have to defend itself against some new lawsuits in the future. Trump's DOJ may be less concerned about civil liberties violations than his predecessor, but his DOJ still has to answer for past violations.

This new report echoes Brad Heath's 2014 research into stash house stings.

At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.

The ATF operations raise particular concerns because they seek to enlist suspected criminals in new crimes rather than merely solving old ones, giving agents and their underworld informants unusually wide latitude to select who will be targeted. In some cases, informants said they identified targets for the stings after simply meeting them on the street.

The sad fact is it takes the private sector to put this damning information together. The ATF likes its easy busts and it likely knows its practices reek of racial bias. That's the only reasonable explanation for its deliberate avoidance of any sort of record keeping.

The ATF said it could not confirm those figures because the agency does not track the demographics of the people it arrests in stash-house cases.

Despite its lack of tracking, the ATF insists it's not participating in discriminatory behavior. It has nothing to offer in its defense, but it continues to insist it's doing the Lord's work with its stash house stings.

Current and former ATF officials insist that race plays no part in the operations. Instead, they said, agents seek to identify people already committing violent robberies in crime-ridden areas, usually focusing on those who have amassed long and violent rap sheets.

"There is no profiling going on here," said Melvin King, ATF's deputy assistant director for field operations, who has supervised some of the investigations. "We're targeting the worst of the worst, and we're looking for violent criminals that are using firearms in furtherance of other illegal activities."

The research available directly contradicts these statements. It's not just independent researchers who have noticed the profiling and the general uselessness of the sting operations. As was noted above, federal judges have arrived at the same conclusions. And federal judges have access to documents the DOJ refuses to release to FOIA requesters as well as the contents of cases still under seal.

More information continues to be pried from the DOJ's grip, thanks to discovery requests in stash house prosecutions. Everything that's been uncovered points to the conclusions drawn two years ago by USA Today and Brad Heath. The federal government is engaged in seriously troubling behavior, targeting poor minorities and fitting them for decades of imprisonment. And it can't even argue the end justifies the means. The drugs and weapons being "robbed" are imaginary. A stash house sting removes no drugs, no guns, and very few dangerous criminals from the streets. The ends are an illusion, meaning nothing about the means is truly justified.

Filed Under: atf, entrapment, own plots, stash houses