May 30, 2014

CONVICTIONS OVERTURNED AS JUDGE CHARGES ATF WITH CREATING “FICTITIOUS CRIMES.”

Each of the men admitted to charges that would put them in prison for seven years or more. But instead of sending them there, U.S. District Court Judge Manuel Real declared that federal agents had “created the fictitious crime from whole cloth” and that their conduct was unconstitutional. Then he dismissed the charges and ordered that all three be set free.

Real’s unusual decision this month is the latest and most pointed indication yet of a growing backlash against undercover operations that have become a central part of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ efforts to target violent crime. Until now, federal courts have largely signed off on the practice, if not always enthusiastically. As the stings proliferate across the United States, an increasing number of judges are offering new resistance to the government’s tactics.

“Judges are getting really frustrated with not hng sufficient answers on how these people were targeted or how they came to be the subject of the sting,” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law who has studied government stings. “There’s a real discomfort that we’re turning people into more serious criminals.”

Nowhere has that frustration played out more dramatically than in Los Angeles, where Real is the second judge in two months to throw out charges in a stash-house case after concluding that the scheme violated suspects’ constitutional due process rights. Another judge there, Otis Wright, dismissed a similar case in March, concluding in a scathing order that a “reverse-sting operation like this one transcends the bounds of due process and makes the Government the oppressor of its people.”

We need more criminal law pushback like this, in more areas. Law enforcement agencies, especially at the federal level, have gotten out of hand.

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