Lawsuit Filed By Victims Of ICE's Fake College Sting Revived By Appeals Court

from the abolish-ICE dept

An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education.

The fake university looked pretty real to applicants. It had a website, a Facebook page, and -- most importantly -- accreditation by a national accreditation service. The school's website told students the fake school was certified by the DHS's Student and Exchange Visitor Program to "educate international students."

It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn't explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do.

ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to "fraudulent enrollment." So, in the government's eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting.

The lawsuit deals with these suddenly-cancelled visas. The issue is the government's arbitrary decision to turn people they first referred to as "victims" into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it's up to federal courts to field these challenges, as the Appeals Court points out.

The Appeals Court delves into administrative minutia to counter the government's arguments and point out where the lower court went wrong. But it also spends some time dealing with the government's contradictory assertions. After sending letters calling the duped students "frauds," the government argued in court it didn't actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]:

We held argument on September 25, 2018. There, for the first time, the Government informed this Court that its position was not that the students had committed fraud by enrolling in UNNJ. Rather, the Government believed that the students were the victims of fraud. The Government twice stated that the students “were caught up in it in the sense that they were victim by the academic recruiters” and that “[t]here was no fraud here. These students, as far as we are concerned, were the victims of fraud. . . . [T]hey were caught up in it.”

[thinking face emoji]

How does the government explain calling victims of fraud perpetrators of fraud when revoking their visa privileges? In a word, badly.

When pressed about the language in the terminating letter, the Government (incorrectly) stated that “fraudulent enrollment” was “passive voice,” and therefore should not be read to imply that the students had committed fraud.

That's a very fine -- and very understated -- parenthetical there.

And it just keeps getting better. The government comes off as a petulant child who has decided only one thing will make it happy -- tossing these students out of the country -- and will do whatever it takes to ensure that happens.

Despite the Government’s position that the students were the victims of fraud, it acknowledged that database entries for each student would reflect the “fraudulent enrollment” determination made by DHS. The Government acknowledged that it was able to, consistent with its stated position, eliminate any database notations that suggested that the students had committed fraud, yet it refused to do so.

Beautiful. And that's followed immediately by another line of pure horseshit, delivered directly to bench by the government's lawyers.

It argued that correcting the record on a preventive basis was not necessary because the “fraudulent enrollment” determination would not have any adverse impact on the students in future immigration proceedings.

Ah, yes. Being accused of criminal acts by federal agencies tends to have no effect on the accused, especially during removal proceedings or the visa application process.

After all this "no harm, no foul" stuff, delivered in hopes of persuading the judge the government wasn't just a tantrum-throwing child wearing its dad's suit, the government decided to embrace its inner child.

On October 12, 2018, the Government changed course yet again. It filed a letter “to clear up any confusion from certain exchanges” that occurred during argument. The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.” “Thus,” the letter concluded, “to the extent that any of the Government’s comments at oral argument left the misimpression that all of UNNJ’s enrollees were innocent victims of the academic recruiters’ visa fraud scheme, that is not the case.”

After the discussion of the government's argumentative fuckery, the court turns to the issue at hand. The lower court said the students needed to take their problems up with the immigration court and/or the DHS first before bringing it to the district court. The Appeals Court disagrees. The students can bring this action directly because the determination made by the DHS was indeed final. There are no intermediate steps these students could have taken to challenge the DHS's determination.

The order terminating these students’ F-1 visas marked the consummation of the agency’s decision-making process, and is therefore a final order, for two reasons. First, there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated. Moreover, even if the students attempt to pursue the administrative procedures for reinstatement, there is no mechanism to review the propriety of the original termination order. Second, the students need not wait for removal proceedings to be instituted. As we stated in Pinho, an order’s finality cannot depend on the institution of removal procedures which may never occur. And in any event, immigration judges cannot review the original denial of reinstatement. They do not have that authority.

The court makes no statement on the propriety of the ICE's sting operation. It does, however, spend a few pages detailing all the efforts ICE made to ensure the bogus college looked legitimate. The decision is subtly damning in its construction, contrasting the "realness" of the college with the government's claim students it first called "victims" were now suddenly fraudsters. The lawsuit lives on, headed back to the lower court to give the plaintiffs a shot at getting the DHS's "fraud" designation scrubbed from their permanent record.

Filed Under: dhs, fake college, fraud, ice, immigration, sting

State Appeals Court Finds Government's Actions In Craigslist Sex Sting 'Outrageous' And 'Repugnant'

from the ruinous-behavior dept

Our courts will let the government get away with almost anything. Although judges have expressed immense amounts of displeasure at the ATF's sting operations involving fictitious drug stash houses, it has seldom resulted in reversed convictions. To "shock the conscience," the government must cross lines courts are very reluctant to draw. Running a child porn website for a few weeks doesn't do it. Neither does taking a trucking company's truck and employee and returning both full of bullet holes after a sting goes south.

Very occasionally, the government will find its way across this line. Eric Goldman has uncovered one of these rare cases. It involves a child sex sting operation perpetrated by a law enforcement agency, during which the undercover officer refused to leave a "target" alone after he repeatedly made it clear he wasn't looking to buy sex from an underage female.

This case’s setup resembles dozens or hundreds of similar cases I’ve read. In 2014, a law enforcement officer (in this case, Skagit County Sheriff’s detective Theresa Luvera) posted a sex solicitation on Craigslist’s casual encounters. As we’ve discussed before, Craigslist’s rules required all participants to be 18+. something that has undermined sex stings in the past (if you read that post, the parallels to this post will be obvious).

The defendant responded to the solicitation. After some online exchanges between the detective and the defendant, the detective claimed she is underage (“almost 15 but waaay advanced”). Even further into the exchanges, the detective brought up money-for-sex. At every step along the way but the end, the defendant seemingly made it clear he was seeking free sex with a female adult. Eventually the defendant shows up at the designated rendezvous point with the requested items. He “was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.”

The trial court dismissed the charges, pointing to the detective's "outrageous misconduct." More specifically, it pointed to the state's violation of the defendant's due process right to "fundamental fairness." The appellate court upholds the decision in its opinion [PDF], which recaps, verbatim, some of the nearly 100 sexually explicit messages sent by the detective to push someone who had disengaged from the conversation multiple times into breaking the law.

In this matter, a law enforcement officer anonymously published an advertisement on an online classifieds platform reserved for those over the age of 18 and indicated that she was "a young female" seeking an individual interested in a casual sexual encounter. Joshua Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

At one point, Solomon rejected the "teen's" advances, stating specifically he thought this was "a setup by cops or a website." This only resulted in Detective Luvera increasing her pleas for illegal sex and amping up the sexual content of the messages. The appellate court's analysis tracks the trial court's distaste for the state's actions. But, as it notes, the government is cut so much slack in so many edge cases, precedential decisions on the topic are few and far between.

A decade later, for the first time, a claim of outrageous governmental misconduct was presented to the Supreme Court in a case in which a full trial court record was extant. In State v. Athan,law enforcement officers, "posing as a fictitious law firm, induced Athan to mail a letter to the firm." 160 Wn.2d 354, 362, 158 P.3d 27 (2007). They did so in order to obtain a sample of his DNA.

That's what the Washington state court has to work with after 100+ years of jurisprudence: one case roughly on point involving something which seems less violative of due process rights. (More of a 4th Amendment violation than a 14th Amendment violation.) The trial court certainly didn't need a bunch of precedent on hand to find the government's behavior disgusting. The appellate decision quotes it at length on the way to upholding the lower court's findings. In this case, the only thing propelling the sting forward was the government. Seven times the defendant tried to disengage and seven times the detective assailed him with increasingly-graphic text messages. And all of this stems from an action the government took: the placement of an ad in an area of Craigslist where all ad posters were supposed to be over the age of 18.

Here's just a small part of the trail court's oral comments on the sheriff department's actions (NSFW in parts):

I can't believe the detective would want to go to trial on this and subject this language to citizens. I'm just going to give you a little tidbit. At 3:17 on Wednesday, September 17th, the detective says, "OMG U R so fing hung baby!!! VVTF . . . I'm so amped up after seeing this. I have wait for my sister to leave and I am gonna video tape me finger banging me to ur plc! Can't u cum and see me now!!!" Yeah, that's repugnant. I don't care how you cut that pie. You can be a seasoned old sailor or whatever, but that is repugnant. That's a detective letting line out very fast on a free spool trying to get Mr. Solomon back in the game. And there is no other way to -- there is no other way to describe it. It's outrageous. That is repugnant. It's egregious.

The appeals court sums this all up with a couple of concise paragraphs.

In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take. Given the court's finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of language and otherwise) repugnant to the trial judge's view of the community's sense of justice, the trial court's determination was tenable.

Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.

This isn't how you catch criminals. This is how you manufacture criminals. Much like the ATF's stash house stings and a great many of the FBI's terrorist investigations, the government does 99% of the work and jails the unlucky person who has been coerced and cajoled into doing something they likely would have never done if the government hadn't instigated it. A good call here by both courts working without almost zero precedent. Unfortunately, the lack of precedent doesn't suggest a well-behaved government. Instead, it points to a whole lot of judicial slack being cut over the years.

Filed Under: entrapment, law enforcement, skagit county sheriff, sting, theresa luvera
Companies: craigslist

Court Moves Business Owner One Step Closer To Getting Paid Back For Vehicle DEA Destroyed In A Failed Drug Sting

from the Motion-To-Unfuck-The-Situation-granted dept

Almost seven years ago, DEA agents borrowed a truck (and an employee) from Craig Thomas Expeditors. Craig Patty, proprietor and employer of Lawrence Chapa, had no idea this was happening. The DEA never approached Patty and, for all he knew, Chapa was taking the truck down to Houston for some service. This was all a ruse. The DEA loaded Patty's truck with marijuana (and his driver) and went down to Houston to engage in a drug sting.

This wasn't the first sting the DEA had deployed using Patty's truck and his driver. But it was the last. Instead of a controlled purchase followed by several arrests, the DEA ran into an ambush instead. Patty's truck was riddled with bullets, as was Patty's driver. In the middle of it all, a plainclothes cop from one Texas agency was shot by a plainclothes cop employed by another.

After this debacle, Patty was finally informed that his truck and employee had been part of a tragic DEA misfire. He was also informed that the federal government would not be shelling out a single cent to repair the $100,000 worth of damage to the truck. (It said even less about the cost of the life it had taken from Patty's driver.) The DEA said it did not have to pay anything for the damage because it occurred during a law enforcement operation. Patty's insurance company said the same thing.

Patty sued the DEA. This went nowhere. The government argued -- successfully -- that clandestine operations like drug stings don't require notification of citizens whose private property is put to use. It also argued it was immune from liability because undercover operations are more important than protecting assets owned by law-abiding citizens. The court agreed and tossed Patty's case.

This appeared to be the end of it. But I'm happy to report that's not the case. Nearly seven years has elapsed since the DEA destroyed Patty's truck, but a federal judge for the Federal Claims court has said Patty can move ahead with his lawsuit seeking compensation for his "borrowed" truck. (via FourthAmendment.com)

The denial of the government's motion to dismiss [PDF] is pretty weedy, but basically comes down to competing interpretations of Patty's allegations. The government argued Patty's complaint alleged illegal actions by the DEA, which would mean this court lacked jurisdiction over the case. The judge points out Patty's complaint doesn't actually do that. What Patty is alleging is something different: a violation of the Takings Clause. The government took property of Patty's without permission and failed to compensate him for the damage done to it.

Defendant relies in part on the fact that plaintiffs assert that the agency’s use of their truck was without permission and an unjustified risk to private property and to the lives of those involved in the LLC. Pls.’ Compl. ¶ ¶ 2, 17, 18, 21. But an assertion of lack of consent to the use is not the same as an assertion of illegality. More importantly, it is not inconsistent with the assertion of a taking. Condemnation actions, whether direct or implied, typically are done over the property owner’s objection.

This changes the legal contours, much to the presumed dismay of the government. It's no longer about apparent theft, but rather the government running roughshod over a citizen's property rights. The government tried to argue it wasn't a taking per se, but rather a form of forfeiture. It didn't say as much in its arguments, but all of its supporting citations dealt with forfeitures in criminal cases or seized evidence. As the court points out, the supporting case law cited by the government does not address the issue at hand.

In each of these cases, the property was evidence in an investigation or the object of the law enforcement action. In none of them did the government simply seize property as a convenience to the government in pursuing unrelated law enforcement.

It then goes on to point out exactly why it won't let the government get away with its false equation.

If defendant’s position is the law, the police power would swallow private property whole. Neither plaintiffs nor their truck were the subject of an investigation, their truck did not belong to a person who was the subject of an investigation, nor was it related, before the fact, to any violation of regulation or statute. Plaintiffs emphasize that neither the LCC nor Mr. Patty had any connection to or dealings with criminal outfits in the state of Texas and that, had it not been for their driver working with the DEA, their truck would have never been involved in the operation. The government instead chose to use plaintiffs’ property as a tool to stage a controlled drug delivery.

Then it goes further, calling out the government for its refusal to admit it screwed a law-abiding citizen out of $100,000+ worth of property -- something the government has done repeatedly in the past and been held accountable for.

Plaintiffs’ claim bears striking similarities to cases in which the government has chosen simply to appropriate private property to secure a benefit for the public. Here, the assertion is that law enforcement officials used private property as a resource for an operation despite lack of consent of the property owner. Using the dichotomy of whether the government action prevented harm to the public or secured a benefit to the public, the government’s action falls within the latter category: it did not seize the truck to prevent a harm to the public caused by or related to the truck or anyone associated with it, but rather the agency chose to use the truck as a resource in ridding the area of controlled substances and criminal activity. It could just as easily have rented a truck and furnished it to Mr. Chapa. Plaintiffs’ truck was not evidence in a criminal prosecution, involved in a police investigation, seized pursuant to criminal laws, or subject to forfeiture proceedings. If what the DEA is alleged to have done here were not compensable, then presumably it could have seized a fleet of trucks or an airplane for the same use.

This moves Patty one step closer for being repaid for the DEA's use of his vehicle. Sure, it's not the DEA's fault its drug sting fell apart and resulted in vehicle damage and the loss of life. But as the court points out, the DEA could have pursued a sting operation without using a private citizen's vehicle. It had plenty of options that wouldn't have put it in the position it's in today. But it chose to do it the easy way, which is now -- seven years after the fact -- turning into the hard way. The DEA worked harder, not smarter. Hopefully, this business owner won't remain screwed for much longer.

Filed Under: craig patty, craig thomas, dea, lawrence chapa, sting
Companies: craig thomas expeditors

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

Who Pays When The DEA Destroys Your Vehicle And Kills Your Employee During A Botched Sting? Hint: Not The DEA

from the law-enforcement:-still-hazardous-to-innocent-Americans dept

The DEA likes to borrow stuff. It's just not very good about returning borrowed items in the same shape it got them.

Like a woman's Facebook account.

Or a businessman's semi truck.

And his employee's life.

Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his "fleet." One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought.

In reality, Chapa was working with the DEA, which had paid him to load up Patty's truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That's when everything went completely, horribly wrong.

[A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.

In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.

The truck’s driver was killed and four attackers were arrested and charged with capital murder.

Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA's operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery.

Patty's truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck's use in a law enforcement operation.

Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant -- something that makes Patty's life a little bit more dangerous.

Nor will it have to. A federal judge has dismissed Patty's lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.)

A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant.

The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because "clandestine."

No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders…

In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted.

Patty responded that Villasana's own testimony ran contrary to this declaration's assertions.

Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].”

The judge points out that Villasana also testified that he was "not aware" of any policy instructing him to notify the vehicle's owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion.

So, it would appear the government -- especially law enforcement agencies -- can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained.

This argument, perhaps the most solid of the multiple presented, dead ends thusly.

In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional.

In the end, it's the crime-fighting ends that justify the means -- even if the means include destroying half of a businessman's fleet of vehicles and turning him into a potential drug cartel target.

Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals.

Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception.

Furthermore -- quoting previous Eighth and Ninth Circuit Court decisions:

"...discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties."

TL; DR, courtesy of Andy Vickers, Patty's attorney:

A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes.

Query:   is our federal government liable to pay for the damages to you and your property?

Answer:   Nope.

Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it's almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its "covert" use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be "neighborly" and show that we're all Americans here and no one -- not even the Drug Enforcement Agency -- is "above' making amends when things go horribly wrong.

Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn't want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases.

Filed Under: craig patty, damage, dea, destruction, lawrence chapa, liability, sting

Victory: Marlyand Police Department Planning To Tweet Arrests Of A Vice Sting Arrests Nobody

from the mission-accomplished dept

We had just discussed one Maryland police department's stupid plan to tweet out the arrests made during prostitution stings the other day. I had several problems with the plan, including that the police offering up pictures of the accused, not convicted, "johns" seemed like an overreach. Add to that a somewhat confusing use of pictures in their blog announcement making it unclear as to whether the accused prostitutes would be put on public display, not to mention the horrified rebuke of some social workers, and this whole thing looked like a poor plan that should be squashed. But it wasn't squashed. The department went forward with the sting-to-be-tweeted. So how did it work out?

It was a complete and total success, by which I mean that they arrested absolutely nobody. I'm going to tell you how the department spun this less-is-more outcome, but you've probably already guessed.

"I've participated in hundreds of stings, and I've never seen what happened today. By advertising this days ago, we wanted to put johns on notice to not come to Prince George's County," Dave Coleman, head of the county's Vice Intelligence Unit, said in a statement. "That message was heard loud and clear. We just put a dent in the human trafficking business without making one arrest."

Yup, they're going with the idea that this widely-mocked threat to tweet out pictures is what kept away everyone who might be seeking a prostitute on the day of the sting. It's an interesting theory, which relies on the idea that somehow getting your picture tweeted by a handle followed by a grand total of twelve-thousand people in the whole wide world was somehow more of a deterrent than getting arrested in the first place. There is such a thing as social shaming, but there's also such a thing as having to go to jail, and I'll leave it to you to figure out which would be worse for most people.

On top of that faulty logic, this idea that declaring victory over human trafficking because nobody showed up to your advertised whores-as-bait party is the stupidest thing since, oh, I don't know...

Yeah, that sounds about right. Some experts agree.

Darby Hickey, an activist who promotes sex workers' rights and spoke to me for our piece last week told me that the department is delusional.

"If 'putting a dent in the human trafficking business' was as easy as threatening to live tweet, imagine what a better world we'd live in," Hickey wrote in an email to me. "I'm glad no one was arrested and I think it was a good moment for conversations about the need to change the approach to sex work, as well as recognize that even if it's still criminalized, furthering stigmatizing is not helpful but dangerous."

Or, I suppose the department could continue with this insane little experiment and plan a tweet-sting every single day for the rest of existence. Assuming they believe their own hype, they kind of have to, don't they? If this is all it takes to end prostitution and human trafficking, it'd be a crime not to, and then we'd have to put their pictures up on Twitter or something.

Filed Under: maryland, prince george county, prostitution, shaming, social media, sting

Police Department Rewards Officer Caught By An Online Pedophile Sting With Full Retirement Benefits

from the in-order-to-protect-YOU,-we-must-first-protect-OURSELVES dept

When parents, law enforcement or politicians discuss web-related issues, one topic always comes up: the possibility that predators are actively stalking children through various social media services. Sometimes this issue is conflated with others in order to push legislation through, while other times it's used as convenient shorthand for the dangers of unsupervised communication.

While the issue is often blown out of proportion, the underlying threat still remains. Arguably, it's much smaller problem than these concerned groups make it out to be, but it is still a real problem. Law enforcement, and the politicians who keep them funded, make capturing child predators a priority, often utilizing extensive sting operations and weeks (or months) of undercover work to put these offenders behind bars.

But what happens when the potential sex offender is himself a member of law enforcement? The answer, at least according to the Worcester, MA police department is "not much." Via Simple Justice comes this ugly story of police protectionism.

The handling of the case involving former Worcester Police Officer Neil Shea and his ensnarement in a sting operation targeting sex predators might have some wondering whether the priority of law enforcement is to protect and serve the community, or to protect and serve itself.

The story begins with an investigation being run by an undercover officer who, while pretending to be a 14-year-old girl, engaged Officer Shea (Latenightcop171) in this conversation:

Latenightcop171 — So you want to learn things

Undercover — What can you teach me

Latenightcop171 — Lot of things

Latenightcop171 — We’d have sex

Undercover — Of course silly, but anything special or weird.

Shortly thereafter, the undercover cop went offline to track down any information on Latenightcop171. The cellphone number provided by Latenightcop171 led back to Officer Shea. Moments after this discovery, the investigation was terminated.

We know that once his identity was discovered, someone from the command post alerted the Worcester Police Department Detective Bureau, which confirmed that Mr. Shea was indeed a member of the department.

We know that once this confirmation was made someone decided to terminate the conversation with Mr. Shea.

We know that the termination was suggested by the Worcester Detective Bureau on the grounds that if Officer Shea had not at that point made “any offers, or broken any law, and that he had not crossed the line, then we should just move on to other more promising subjects.”

Any normal investigation would have continued until the "line" was crossed but in this case, in order to keep one of their own from incriminating himself further, the Detective Bureau called off their own investigator. And it looks as if Officer Shea would have gone further, if given the chance.

We also learned that later, after the undercover officer went offline, law enforcement officials later went back to check the transcript of the chat room conversation and found that “Latenightcop171” had made additional contact, including leaving a friend request.

The District Attorney's office denies any involvement in the investigation's termination. Police Chief Gemme, however, claims the termination call was made by an on-scene police supervisor who decided that there was "insufficient evidence to pursue a criminal complaint."

What Gemme says is inarguably true, but only because the investigation was shut down, not because any of Officer Shea's actions up to that point indicated he did not want to pursue this further. While it's true that some people have walked up to the precipice (so to speak) and peered over it before deciding to step away, we'll never know for sure if Officer Shea was one of them. Instead, he was met at the precipice by his employers, who carried with them a taxpayer-funded safety net.

Officer Shea obviously wasn't going to be able to escape this situation unscathed, but what he ended up with is a lot more than any average citizen in the same position could possibly expect.

We are told Mr. Shea did not commit any crime, but that it was determined by Police Chief Gary Gemme that Mr. Shea committed several violations, including incompetence, neglect of duty and conduct unbecoming an officer.

Mr. Shea resigned before the investigation, in which all allegations were sustained, was completed. He is free to receive all retirement benefits.

Officer Shea ducked a pedophile sting (with some inside help) and exited with a full pension. This works out well for him, and keeps the Worcester PD from having to dirty its hands any further. But, as The Telegram asks, how does this help the community? You know, the same community Officer Shea was supposed to be protecting from criminal activity like this?

Scott Greenfield at Simple Justice asks the same question, only in a much more righteously furious tone. What "line" does the Worcester PD actually think needs to be crossed before someone like Officer Shea is forced out without collecting benefits?

After all, there is nothing a police officer can do, not even roaming the interwebz to find teenage girls in his community with whom to chat about sexual liaisons, that warrants stripping a cop of his pension. For anyone who doesn't appreciate the importance of the pension, this should make it abundantly clear, as not even his pedophile conduct was sufficient to push him over the line of denying him a pension.

While the mere inquiry, without further action toward making contact happen, may not have pushed this conduct from "unbecoming" to criminal, the termination of the sting before Shea took the next step of setting up a meeting with his new 14-year-old friend precluded his prosecution and, upon conviction, the end of his ability to entice little girls to have sex with him...

Anybody want to bet that all the parents of teenage girls in Worcester are cool with the fact that they are not only paying Shea's pension, but that he's still got unfettered internet access to chat up their babies?

As Greenfield suggests, the next time someone starts wringing their hands about child predators roaming the 'net, be sure to point out that those actively engaged in countering this threat were forced to cut a potential sex offender loose simply because he was one of the "good guys." How does this police department, in good conscience, sell out its own community in order to keep a fellow officer from being incarcerated or stripped of his benefits? How can they look their fellow citizens in the eye and claim they're here to serve and protect the public?

Filed Under: pedophile, police, sting, worchester

Something's Not Right: German User Has To Use Chinese Proxy To See New Music Video

from the ah,-gema dept

We've been writing about German music collection society GEMA's bizarre fight against YouTube for a few years now, in which all major music videos are blocked from YouTube in Germany because GEMA is suing YouTube and refuses to even discuss a potential license until the lawsuit is over. As we noted recently, this is even frustrating the labels who feel that GEMA is costing them serious money in not just doing a deal to make videos available. While researching something else on Twitter, I came across this telling tweet, from an individual in Germany talking about how they had to use a Chinese web proxy just to watch a new Sting video, and properly notes just how screwed up the world is when people in Germany are relying on Chinese web proxies just to watch music videos. I'm still trying to figure out what good this does anyone... other than GEMA.

Filed Under: china, germany, licensing, music, proxy, sting, videos
Companies: gema