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Casablanca, selective enforcement and the use of the fictitious stash house operation

On Behalf of | Dec 16, 2017 | Firm News

I love the movie Casablanca starring Humphrey Bogart, Ingrid Bergman, Claude Rains, Sydney Greenstreet, and Peter Lorre.  Set during World War II, the movie focuses on an American expatriate, Rick Blaine who owns an upscale nightclub and gambling den in Casablanca (Bogart), who must choose between his love for a woman, Ilsa Lund (Bergman), and helping her and her husband, Victor Laszlo a Czech Resistance leader, escape from the Vichy-controlled city of Casablanca to continue his fight against the Nazis.  German Major Strasser has come to Casablanca to oversee the unabashedly corrupt Vichy prefect of police, Captain Louis Renault, to see that Laszlo never leaves Casablanca.

In one scene, Strasser leads a group of German officers in singing at the nightclub, “Die Wacht am Rhein” (“The Watch on the Rhine”).  In response, Laszlo orders the house band to play “La Marseillaise”.  When the band looks to Rick, he nods his head. Laszlo starts singing, alone at first, then the crowd joins in, drowning out the Germans. Strasser has Renault close the club because of the patriotic fervor of Laszlo enabled by Rick.

However, when Rick confronts Renault to explain why his nightclub is being closed, the following memorable dialogue occurs:

Rick: How can you close me up? On what grounds?
Captain Renault: I’m shocked, shocked to find that gambling is going on in here!
[a croupier hands Renault a pile of money]
Croupier: Your winnings, sir.
Captain Renault: [sotto voce] Oh, thank you very much.
Captain Renault: Everybody out at once!

In statements that echo the incredulity of the French prefect of police in the movie Casablanca, law enforcement has professed themselves shocked to discover that anyone could object to the idea of stash house stings on racial grounds.

An unprecedented panel of nine federal trial judges has begun hearing evidence in Chicago on whether phony stash-house stings are racially biased.  As explained in a Chicago Tribune article, stash house stings typically begin when an informant provides information to the ATF about a potential target who has expressed interest in taking part in a robbery.  The ATF orchestrates every aspect of the fictitious stash house operation.  This includes the hand-picking of all of its targets for the fictitious stash house operation.  Agents are required to sign off on all of their targets before arrest, not just the initial target. The playbook even entitles agents to walk away on the day of arrest if the ATF cannot conclude that the targets are a viable robbery crew or otherwise have met the Operation’s criteria.

Specifically, an undercover ATF agent or confidential informant (CI) offers his targets an enticing jackpot: an opportunity to rob a stash house that contains large quantities of drugs, worth hundreds of thousands of dollars, guarded only by a few men with guns.  In a series of conversations captured in undercover recordings, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime.  In order to avoid a defendant raising an entrapment defense, the stings are supposed to target only suspects who are already experienced robbers. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched.

However, in practice the lucrative-seeming opportunity of a stash house robbery were only offered to black and Hispanic suspects, not to those similarly situated in criminal background and interests but of other ethnicity.  “[T]he equal protection component of the Due Process Clause of the Fifth Amendment” constrains the exercise of both law enforcement discretion and prosecutorial discretion. United States v. Armstrong, 517 U.S. 456, 464–65 (1996). Selective enforcement and prosecution claims “draw on ordinary equal protection standards.” Id. at 465 (internal quotation marks omitted). To prevail on a selective enforcement claim, a defendant must show that law enforcement’s conduct (1) had a discriminatory effect, and (2) was motivated by a discriminatory purpose or intent. Id.; Chavez v. Illinois State Police, 251 F.3d 612, 635–36 (7th Cir. 2001). The ATF’s Stash House Operations produced a discriminatory effect, and were motivated by a discriminatory purpose.

The defense asked Professor Jeffrey Fagan “to conduct a comparative empirical analysis to determine whether the race disparities in the pool of stash house defendants result from a selection process that is influenced by race.”  The analysis of the possible racial disparities found that the race of the defendant’s were inexplicable on grounds other than race.  Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266 (1977).

The Fagan Report found clear evidence of racial discrimination:

[A]fter controlling for the ATF criteria as well as several indicia of criminal propensity, race remains a statistically significant predictor of selection as a Stash House defendant. These analyses show that the ATF is discriminating on the basis of race in selecting Stash House defendants.

Professor Fagan’s statistical analyses are evidence not just of correlation but also of causation: They rule out race-neutral explanations, creating the inescapable conclusion that the ATF selected the stash house defendants on the basis of race.  In spite of directives, the ATF disregarded its Operations’ many substantive and procedural selection criteria for Black people and other defendants of color. The result is a group of defendants who are 92% people of color—enormously more targets of color than a non-race based selection process would capture.

Worse as expressed by Judge Posner in United States v. Kindle, 698 F.3d 401 (2012) stash house stings make it safer for drug dealers to run stash houses:

[C]onsider the role of such stings in the “war on drugs.” Are they likely to reduce the sale and use of illegal drugs? No; they are likely to have the opposite effect. Stash house robbers do not increase the amount of drugs in circulation, since they steal their drugs instead of making or importing them. The effect of a fictitious stash house sting, when the person stung is, unlike Mayfield, a real stash house robber, is therefore to make stash houses more secure by reducing the likelihood of their being robbed. A sting both eliminates one potential stash house robber (unless the defendant was entrapped) and deters other criminals from joining stash house robberies, since they may turn out to be stings. The greater security that fictitious stash house stings confer on real stash houses — security obtained at no cost to the operators of stash houses — reduces their cost of self-protection, which is a principal cost of the illegal-drug business. The lower a business’s costs, the lower the prices charged consumers, and so the greater the demand for illegal drugs and the more sales and consumption of them. The operators of stash houses would pay law enforcement to sting potential stash house robbers.

As indicated by Judge Otis Wright II in U.S. v. Hudson, Whitfield and Dunlop, the stash house stings represent not law enforcement but crime creation making the government an oppressor of the people.  These reverse sting operations ensnare chronically unemployed people of color in poverty ridden areas in fake stash house robberies.