In editing People v. Watson, 990 P.2d 1031 (Cal. 2000), for the entrapment unit of my Criminal Law class, I was struck by the elementary yet common flaw in the concurrence. Here is the fact pattern:
One March evening in 1997, Bakersfield police officers conducted a vehicle theft “sting” operation. They staged an arrest of a plainclothes police officer driving a black 1980 Chevrolet Monte Carlo that belonged to the police department. The arresting officers activated the emergency lights and siren of their marked patrol car and stopped the Monte Carlo. The Monte Carlo’s driver drove into a parking lot and parked. While a group of spectators watched, a uniformed police officer approached the Monte Carlo, ordered the driver out, patted him down, handcuffed him, placed him in the back seat of the patrol car, and drove away, leaving the Monte Carlo behind. The police left the Monte Carlo unlocked with the keys in the ignition to make it easier to take. They wanted to “give the impression [the driver] was arrested and the vehicle was left there.”A couple of hours later, police arrested defendant after he drove the Monte Carlo from the parking lot. He told the arresting officer that his niece had informed him of the earlier apparent arrest and told him to “come and take” the car. He did just that, intending to use it to “roll,” i.e., to drive it.
Defendant was charged with taking a vehicle. [The question was whether he was entitled to an “entrapment” instruction, and the court said no:] The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense. People v. Barraza, 591 P.2d 947 (Cal. 1979). In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. “[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” [Details omitted. -EV]
And here is Justice Mosk’s concurrence:
I concede that the result that the majority opinion reaches is sound under the law.But I cannot resist expressing my reservations about the morality of the conduct by the police.
It is a primary function of a law enforcement agency not only to investigate the commission of crimes but also to prevent their commission in the first place, certainly not to encourage them. Members of the public are persuaded to lock their motor vehicles and to remove the keys therefrom. The police acted to the contrary here and thus deliberately encouraged commission of a crime. The defendant, so motivated, accommodated them.
If leaving the keys in an open motor vehicle is sound law enforcement, then next we may anticipate arranging for a homeowner to leave his front door open all night to attract a burglar. Or a bank to leave a signed check on the counter to attract a forger. Or leaving a loaded gun on a park bench to attract a potential robber. Police may thus apprehend more criminals. But there will be more crimes.
In a strange rebuttal, the majority opinion refers to the police “risking their own property.” [That part of the majority is omitted in this excerpt. -EV] The fact, of course, is that police possess and use public property and must act with that in mind.
My preference is for law enforcement agencies to take steps to make the commission of crimes impossible, or at least more difficult, rather than simpler. Admittedly there are potential criminals in our midst, and weak-willed persons who will take advantage of criminal opportunity. I would prefer discouraging them rather than devising techniques to make their task easier.
Now I agree that some police stings can be improper under some circumstances, much as nearly any police tactic can be improper under some circumstances. And I am in principle open to the argument that police decoy operations might be generally impermissible.
But the argument the concurrence makes just doesn’t work (incoming law students, take heed). The fallacy is in the assumption that “to prevent [the] commission [of a crime]” and “to encourage [the commission of a crime]” (even when the encouragement is in the form of a decoy operation) are opposites, or at least incompatible. (Likewise, note the supposed incompatibility of “discouraging [potential criminals]” and “devising techniques to make their task easier.”)
In fact, the obvious premise of sting operations is that one can prevent the commission of future crimes by encouraging the commission of a present one: This can help catch people who are disposed to commit the crime, and can help deter others. Maybe one shouldn’t do this even if it’s effective. Or maybe there are subtle reasons why it’s ineffective. But if that’s one’s argument, one needs to make it, rather than just assuming that preventing crime and encouraging a crime by means of a decoy are incompatible, to the point that no further argument is required.
One helpful way of thinking about this is to imagine a structurally similar police investigation of a more severe crime. Say that a rapist has been attacking women in a park. And say that the police decide to send a woman officer in as a decoy. To make her an even more appealing target, let’s assume she’s very attractive and at the same time and apparently an easy mark (for instance, she’s staggering as if she’s drunk).
Are the police trying to prevent the commission of rape? Absolutely. Are they encouraging the commission of an attempted rape? Yes, in the sense that they are making it more likely that an attempted rape would take place this particular evening. (Presumably they have set things up so that it’s extremely unlikely that the decoy will actually be raped, or otherwise seriously hurt.) So whatever argument there might be against this practice, it can’t be that police should “prevent [the] commission [of crimes] in the first place, certainly not to encourage them.”
The car decoy example is structurally quite similar. (There are differences, of course, especially in the severity of the crime; but those differences are not, I think, relevant to the particular argument that the concurrence is making.) One can’t condemn such a decoy simply on the grounds that the function of the police is to prevent rather than encourage crimes, unless one confronts the possibility that they can prevent real crimes by encouraging doomed attempts.
rilkefan says:
“Say that a rapist has been attacking women in a park”
The sting is targeted at an individual. Was the car sting targeted? Did the sought perp take the bait, or some other community member? Does the police dept. make a habit of doing this in wealthy communities? Does any of the above matter to the law?
August 9, 2010, 7:33 pmEugene Volokh says:
rilkefan: These are interesting arguments — but they’re quite unrelated to the argument the concurrence was making. Off the top of my head, I’m not sure why it should matter whether the sting is targeted at an unknown individual, or at general members of the public. (Say, for instance, that the rapist sting was instead aimed at muggers, and there was no reason to think that there was just one mugger working the neighborhood.) As to whether the police do it in rich neighborhoods, (1) that’s an issue that arises with regard to all law enforcement, not just stings, and (2) since criminals mostly prey on their neighbors, enforcement in poor neighborhoods will often disproportionately help poor victims (as well as catching poor criminals); and even poor victims have some cars that thieves might steal. But again, whatever force your arguments might have with regard to decoy operations generally, they aren’t the arguments that the concurrence was making.
August 9, 2010, 7:39 pmcboldt says:
Entrapment would be telling the thief it was okay to take it, there would be no consequence. Opportunity for crime is ever present, and creating such an opportunity is not entrapment. Same for drug busts on a buy, by the law; solicitation of prostitution; decoy fences for stolen property; etc.
August 9, 2010, 7:41 pmThe concurrence is expressing a policy or moral judgment about this sort of technique in the general, and doesn’t disagree as to what comprises the defense of entrapment.
Mark N. says:
I don’t think entrapment is that limited a defense. My understanding is that courts sometimes accept an entrapment defense if the defendant can argue that the police created an unusual or extraordinary opportunity for a crime that the defendant would have been otherwise quite unlikely to encounter, even if there was no active inducement (in effect, creating an otherwise very unusual criminal opportunity is a form of passive inducement).
August 9, 2010, 7:49 pmChristopher Cooke says:
the concurrence’s point appears to be maybe the defendant wouldn’t have committed any crime at all had the police not set up such an enticing situation for him. If the police had left the car, but locked it, that would have caught a more determined car thief, and maybe not the defendant.
August 9, 2010, 7:51 pmHm says:
this happens quite often in the jurisdiction I work in. Bait cars are the least, sometimes the police put bait packages (ie small envelopes with sugar or powdered milk inside) on the ground and wait for people to pick it up, alleging drug connections.
August 9, 2010, 7:51 pmDan M. says:
I don’t think any of the above matters to the law, but unless there was a rash of car thefts in a particular neighborhood that was going on, I think the sting seems like a wasted effort to just encourage a guy to commit a non-violent act against another presumed criminal so you can throw him in jail. Even if there was a wave of car thefts, I think it would just make thieves more wary of obvious set-ups like this one, but not dissuade car theft in general.
August 9, 2010, 7:51 pmSuperSkeptic says:
It seems to me to matter to the degree that there is a difference in the degree of the crime being baited. If there is a targeted rapist, the decoy makes more sense, because (presumably) less people are likely to randomly commit rapes than they are to randomly jack unlocked-key-in-the-ignition cars. The latter is much, much easier to commit (I would assume) and only affects property rather than a person.
That said, I generally agree with your point; although, I think it doesn’t conclude as hard as you think it does because (not having read the whole concurrence), it doesn’t seem to me to be essential to the moral thrust of the concurrence for the “assumption” of incompatibility to reach the degree of mutual exclusivity.
August 9, 2010, 7:55 pmMahan Atma says:
The difference is that they are doing it to catch someone who has already committed a crime.
If they’re simply targeting general members of the public, they might catch someone who has never committed a crime and might not ever commit a crime if not presented with such a tempting opportunity.
August 9, 2010, 7:55 pmrilkefan says:
To spell out my admittedly silly perspective on the question as a physicist and not a lawyer, one may ask if the background is higher than the signal from the sting. If the latter, the police may well be encouraging overall crime (and in a way that happens to benefit them). If your university or mine decided to send around undercover agents posing as attractive undergrads to offices of people known to be working late in buildings where it was expected few observers would be around etc., looking for violations of the ethics code among colleagues not reasonably or at all suspected, I think I’d be unhappy with the policy, unless perhaps it could be shown that the deterrent effect was exceptionally strong.
Also, say the arrestee had called the police to report the car and they had done nothing – would he have a better case?
August 9, 2010, 7:57 pmMahan Atma says:
Suppose the police leave a large bundle of cash laying on the sidewalk. I’d be willing to bet that a large segment of the population would pick it up and walk away with it, without ever reporting it lost. That’s a crime.
I’d also bet that many of those people would never commit such a crime as theft, if they were never faced with such an opportunity.
But temptations like that are pretty rare. So what’s the point of making these people into criminals?
August 9, 2010, 7:59 pmSuperSkeptic says:
Incidentally, there now exists a “bait car” tv show…
http://www.trutv.com/shows/bait_car/about.html
August 9, 2010, 7:59 pmPierre Corneille says:
Yes, but the concurrence was not arguing that these police operations were impermissible. It was arguing that there was reason to doubt the morality of what the police were doing. Now, the judge may have committed the fallacy you point out, and he/she may have acted inappropriately by opining on the morality, as opposed to the legality, of what was at issue. Still, the judge was commenting on whether is was right for the police to do something like this.
August 9, 2010, 8:07 pmwhit says:
i can’t believe people are even arguing this. it is a non-issue. in no way, shape or form is this entrapment. i am sure many people think it’s “not cricket” or some such for cops to do so, but no law abiding person is going to steal a car merely because the keys are in it.
with all due respect, justice mosk is full of it (don’t you love when people say with “all due respect” then trash the person?)
his concurrence is a bunch of irrelevancies and personal foibles that have nothing to do with the law.
one of the primary jobs of law enforcement is to catch bad guys. unfortunately, all too often our de facto job is to respond after the fact to crimes, write reports , and leave. and nothing will ever happen to solve them. at best, we can offer brief consolence to a victim and the idea that SOMETHING was done, although in reality – the chances of the bad guy being caught in many of these crimes are slim to none
the job of cops is to catch bad guys. stings like this are great. i wish cops did more of them. instead of waiting for a bad guy to steal 20 cars before he’s caught or whatever, not to mention the risks of pursuit (bait cars can have kill switches etc. in them so pursuits don’t happen), we victimize NOBODY and catch a bad guy, and there is no question of his guilt (no he said/she said), it’s all hopefully on video and clear cut.
the judge also disregards the deterrent effect that once this guy talks to his buddies, it will become well known that the next “easy mark” car they see could very well be a decoy too. putting the fear of apprehension into criminals is a good thing. thus, this sting acts as both a specific and a general deterrent, it places nobody in danger, and nobody gets victimized. win/win/win
the cops did a great job here. i want every thief to have that idea in the back of his mind “heck, this could be a sting” NOT “another easy car theft for me to pawn”
i have a special familiarity with entrapment law, since i worked undercover a very long time and made numerous undercover purchases of narcotics, weapons, etc.
this case isn’t even one of those remotely close questions.
we want people to minimize their chances of becoming victims. locking cars, buying a club, etc. does so. it doesn’t therefore follow we don’t want to catch car thieves by giving them every opportunity to screw themselves.
as a taxpayer, i would be proud to have these cops doing these sort of stings in my jurisdicftion. they are going after people that harm others (thieves) as opposed to victimless crimes , and they are doing it in an intelligent and efficient way that puts nobody in danger.
good for them.
there is no legal question. nobody could reasonably consider this to be entrapment. many, i am aware, think it’s not the “job of the police” or it’s not “fair” or other such rubbish.
August 9, 2010, 8:13 pmgrog says:
A few years ago, this was happening a fair amount in NYC. Cops would leave wallets on the ground and bust people who picked them up.
I think that has stopped, but it happened enough that many people I know concluded that it is unsafe to be a good samaritan in such a situation, and will no longer pick up lost property to attempt to return it. (I won’t, either, now.) It is a bit sad.
August 9, 2010, 8:14 pmwhit says:
imo, that’s tough. tough!
if you take somebody else’s car merely because it is easy to do (the keys are left in an ignition), then you are a scumbag and you deserve to get caught. i don’t really care what kind of tempting opportunity you might have been presented with or not. that’s a matter of chance. the fact that you are a person who would do so IF presented with such an opportunity, and DID do so given that opportunity – makes you a criminal. period.
i deal with crime victims all the time. these are minor things to us (cops), because we are jaded. how many stolen car and burglary reports have i taken? hundreds. but to these people, this is a serious thing, and these thieves are hurting other people. a lot
nothing makes me happier than to see this type of person get justice. they are scum
August 9, 2010, 8:17 pmChris Travers says:
I don’t know what the argument is about. The concurrence basically says (by my reading) “Unfortunately this is good law, but I don’t like it.”
It strikes me that the concurrence is complaining about the police behavior here as being unsavory rather than illegal. I understand and agree with the concerns, and agree with everyone that it doesn’t make it illegal.
Should it be illegal? I suppose that’s a matter that the legislature can discuss if they want.
August 9, 2010, 8:20 pmDavid Schwartz says:
The problem is his inference that this will create more crimes. More likely, it will create fewer crimes since the people who commit these crimes will be in jail and unable to commit any more crimes. Plus, as word of this gets out, some normally law-abiding citizens may feel less likely to take advantage of apparent opportunities to break the law.
August 9, 2010, 8:21 pmwhit says:
and i would think a valid defense in those situations would be that these people were picking up the wallets so somebody else wouldn’t steal it and were going to call the police, etc. that is an ENTIRELY different situation
nobody is going to start a car and drive off if they see it with the keys in the ignition (and probably 99% of law abiding people never look in the ignition of cars they walk by – thieves do this. normal people don’t), in order to “help” the person who left their keys in the ignition. whereas plenty of people woudl, heck SHOULD pick up a wallet lying in the street and turn it over to the police and./or go to the owner (like if an ID with an address is inside).
they are completely disanalogous stings imo. the wallet sting isn’t so much entrapment, as an example, where there is no proof the person who picked up the wallet was actually stealing it (see: intent) whereas ample proof the person driving off or attempting to start the ignition in the bait car was (note also that joyriding is also a crime, if that was their only intent, in many states, other states don’t distinguish)
the cops were wrong to do the wallet sting imo.
August 9, 2010, 8:21 pmZack says:
The targeting is relevant determining whether the trap actually reduces crimes. In this particular case, I think it’s possible to conclude that the sting increases encourages crimes at the expense of preventing the commission of crimes. Assume an amoral yet lazy person who is willing to steal cars, but not willing to put in any effort. By setting the trap, the police prod him to commit a crime, although his natural indolence would otherwise be sufficient deterrent. In such a case, the “entrapment” creates crimes rather than reducing crimes. The targeted trap is different, as there is a more concrete crime that is prevented. The trap crime that the target is encouraged to commit directly prevents future real crimes.
The judge, though, is guilty of applying the principle generally, rather than to this specific case. Judge Mosk would have been better off saying that the utility of the potentially prevented car thefts did not outweigh the cost of the encouraged crime.
August 9, 2010, 8:24 pmwhit says:
exactly. as my point is made before – it’s both specific and a general deterrent.
note also that cops job should be to CATCH bad guys, and in these types of stings if one extra crime (which is never allowed to get away) means an apprehension, that’s a great tradeoff. especially considering that it’s almost certain the thief in the sting is a chronic thief ime.
the OP also commits a logical fallacy. it’s not that leaving the keys in *a* vehicle are good law enforcement. leaving the keys in a BAIT vehicle IS good law enforcement. there is a significant difference. the latter is surveilled and is done for the purpose of catching the criminal in the act, not in making another crime victim and letting a criminal get away with another car. they are completely different things
August 9, 2010, 8:25 pmrilkefan says:
Presumably the very point of the judge’s comment.
August 9, 2010, 8:28 pmwhit says:
first of all, crime is bad because it creates VICTIMS (which is why i am against victimless crime like the war on drugs but i digresws). there is nobody victimized by these stings. so, yes there is an extra (inchoate really) crime “created” by these stings, but UNLIKE the other crimes these scumbags commit — nobody is victimized. it’s not like the cops weren’t warning people about a criminal in their midst lest he be scared off and not commit a crime. just so they could catch him. they are creating an opportunity for the scumbag to steal something that will harm NOBODY and bring him to justice. in that sense, i want my cops creating as many of these crimes as possible.
no law abiding person would steal a car just because somebody left the keys in the ignition. i want those people off the streets of my community.
utter rubbish. there is no “prodding”. the very word evidences your clear bias.
they are simply creating the opportunity for a crime to occur, that UNLIKE 99%+ of crimes is almost certain to result in apprehension, endangers nobody etc.
i realize a lot of people don’t like these kinds of stings. tough. they are not entrapment and nobody is “prodded”
if you would take a car merely because it’s sitting there with the keys in the ignition, then you are a criminal, all sorts of minority report pre-crime arguments aside. similarly, if you are just waiting for somebody to come along and offer you 10k to have sex with them you are a prostitute, you just haven’t consummated your crime
and again, i have little doubt that anybody who would take the car in this bait case would be anything but a career criminal thug dirtbag. that’s what thieves are.
there is an exceptionally remote chance that whoever was caught would be committing their first such theft, but it’s so swimmingly rare as to be almost inconceivable.
August 9, 2010, 8:29 pmIke says:
“Targeted at an individual”? My city needs to contact that PD and learn how to find and train the psychic they’re using, if that sting was individually targeted! In fact, the Pentagon could use that psychic to help find Osama bin Laden. How could they PD possibly have targeted one specific individual? And what possible difference does it make, whether the “targeted individual” or “sought perp” was the one to take the bait or some other “community member”? A car thief removed from the streets, even if for a minimal period of time, is one who isn’t out stealing a private citizen’s car. Thank you for the phrasing, though; I had a good laugh. One thief is pretty much the same as another to my understanding.
Do you have a great deal of vehicle thefts in the wealthy part of your community? Usually, the wealthier folks have bigger thefts … er … fish to fry than stealing a car. The effectiveness of “bait” is related to whether it is placed where a “fish” is likely to find it. Without regard to sophistries or quibbles, a law-abiding person – whether he or she was the “sought perp” or just another “community member” – wouldn’t have taken the car. End of story.
August 9, 2010, 8:30 pmcboldt says:
– the cops were wrong to do the wallet sting imo. –
August 9, 2010, 8:34 pmI’m curious how the wallet sting was arranged. Depending on where the lost wallet was, it might be “fair.” For example, in a hotel lobby, where would you take the found item? In a store?
Ever lose a wallet? Where do you go looking? Wherever you’ve been, that’s where. An honest person doesn’t take the cash then turn the wallet over, and doesn’t leave the premises with the wallet. The only exception I can think of is the person personally knows the owner of the lost item (then they’d take the cash — just kidding!)
whit says:
seriously. it boggles my mind, although i realize a lot of lawyers well… that ANYBODY would want to deter this type of police activity – an activity that with no violence, no risk to the public, and a reasonable cost outlay – cops catch scumbag thieves, with incontrovertible evidence (no he said/she said bogus convictions here) and put them in jail where they can’t further victimize people
it’s about as savory a thing as a cop could do, apart from saving a damsel in distress who is tied to the train tracks.
August 9, 2010, 8:35 pmrilkefan says:
By not being stupid, for starters – they bait the park with a problem, they use agents who generally resemble the victims (race, age, whatever).
Re deterrence vs incidental damage, the system is usually intended to strongly protect those falsely accused of crimes even if this allows criminals to go free and commit more crimes; something of the sort might be argued here.
August 9, 2010, 8:35 pmwhit says:
imo, there is no question that it is “right” and moral for the police to do this
imo, the only people who could possibly think otherwise are those that sympathize more with criminals than with crime victims.
August 9, 2010, 8:37 pmef says:
I am a tough on crime type, but I have a problem with these sorts of sting operations. edit: I don’t think it’s entrapment, specifically. I do think it’s improper.
I’d challenge your argument at it’s inception because it fails to take into account the possibility of changes within the person, or amongst their circumstances, in the intervening period. We do not know who may or may not commit those future crimes based on how they might act today, even if the two groups are highly correlative. Encouraging someone to act, in this way, is causing them to act without the advantage of potential wisdom, information or insight that they may gather in the future, and they are doing so only because the police set up a situation to specifically test their decision making in a situation that would not have occurred in their absence.
Yes, and it will also snare people that are currently disposed toward a particular crime, but would not naturally commit, and who would otherwise go on to not commit a crime in the future. An individual desperate for 20 dollars for instance may grab a purse from an open car left as bait, but having their financial struggle resolved, later pass on the same opportunity.
August 9, 2010, 8:44 pmwhit says:
and i agree. people falsely accused of crimes are way too common, and unfortunately nothing can be done to prevent people from lying (crime victims, witnesses, etc.) except try to ferret out what really happened vs. what is claimed happened – with imperfect results, and the ultimate injustice – an innocent wrongly convicted.
this is 100% opposite that kind of tragedy. here we have a person where there is about as close to 0% doubt of their guilt as could be possible – a crime witnessed , usually videotaped and with no doubt whatsoever that what was claimed to have happened – did happen.
it is stings like these we should encourage. unlike many cases that rely on imperfect evidence, probabilities and where really unlucky coincidence can result in wrongful conviction, here we are protecting the innocent and making sure the guilty pay.
win/win
August 9, 2010, 8:44 pmgrog says:
I didn’t mean to make a direct comparison – personally, I’m still mulling over the ‘bait car’ concept – not ready to say it is wrong, but it makes me uncomfortable.
I agree, the bait-wallets were a terrible idea. It just made people like me afraid to grab a lost wallet to try to find the owner, making it more likely that someone less honest will grab it.
But then the NYPD manages to do a lot of counterproductive things.
August 9, 2010, 8:45 pmJohnF says:
We are missing the boat here. If the test is whether the police conduct is “likely to induce a normally law-abiding person to commit the offense,” then doesn’t the teaching of Judge Walker tell us that we must take evidence on this subject and make findings of fact about the universe of law-abiding citizens? Instead, the courts just make this stuff up, as they do when they consider whether statutes have rational bases.
August 9, 2010, 8:47 pmSeaDrive says:
Whit makes a leap that I find unacceptable. He divides the population into the good guys and the bad guys, and argues that getting a bad guy is good thing. But is that really his job? I should have thought that his job was getting the particular guy who already committed a particular crime. He doesn’t have a general brief to lock up persons of low moral character.
In fact, Whit is explicit in saying that cops run stings because actually solving minor property crimes is too difficult. I suppose they have to, and I’m not really arguing that they shouldn’t, but it’s a substitute for doing the right thing.
August 9, 2010, 8:48 pmPierre Corneille says:
Whit:
I think there is “some” question that it’s morally right, or else the issue wouldn’t require your (very well reasoned and mostly convincing) responses.
There is possibly, as Mr. Volokh conceded, some line at which stings cross over into something that is not purely “right” even if they are legal. It is also possible for someone to speculate on that possibility without automatically sympathizing more with criminals than with crime victims.
(For what it’s worth, after reading your comments, I’m convinced, absent other evidence, that this type of sting was good and worthwhile.)
August 9, 2010, 8:52 pmJardinero1 says:
Out of curiosity, is it entrapment when cops pose as underage girls in chat rooms and induce men to meet them for sex? I always assumed it was not entrapment if the adult male initiated the conversation but what if the supposed minor initiates it?
August 9, 2010, 8:52 pmcboldt says:
– My understanding is that courts sometimes accept an entrapment defense if the defendant can argue that the police created an unusual or extraordinary opportunity for a crime that the defendant would have been otherwise quite unlikely to encounter –
August 9, 2010, 8:53 pmThat’s true, and my summary was incorrect. The affirmative defense of entrapment has the possibility of “extraordinary opportunity,” which probes the defendant’s predisposition to crime.
whit says:
it’s not a substitute. it is entirely 100% the right thing, and a more efficient way to catch THE BAD GUYS than writing reports on crimes ex-post fact and HOPING something comes up.
there most definitely ARE bad guys. here’s a hint. people who break into houses and steal stuff or steal people’s cars are the bad guys. period.
heck, as more than one has admitted to me in interrogation, THEY know they are scumbag thieves and bad guys. i’ve had several outright admit it to me, and if they caught somebody doing to them, what they do to others, that they would leave a bloody heap on the ground
so let’s stop playing games. if you burglarize people or steal their cars – your a bad guy
and if cops can come about with more effective ways to catch these scum, and also less likely to see pursuits (dangerous), excessive force (having lots of cops on these surveillances makes swarm and contact/cover more effective), and less time spent sending beat cops to write reports that will get filed away and that’s it. because absent them fencing something with a serial # that we have recorded as stolen, or somebody ratting somebody else out, or other such lucky break, the bad guys get away with it many many times, without getting caught
and thanks for making my point about “minor” properrty crimes. try working your butt off 50 hrs a week and being able to barely afford a car, gas, etc. so you can feed your family and then have some scumbag criminal steal your car, that you have no theft insurance on, because you can’t afford it – and THEN call it minor. do it right to the victim’s face. i dare you.
August 9, 2010, 8:54 pmwhit says:
initiating a conversation is no more entrapment than an undercover officer asking somebody “hey, do you know where i can score some coke?”
it certainly can be a factor IN an entrapment defense, but it’s not entrapment in and of itself.
there are LOTS of gray areas and complex tough cases in entrapment law. my point about THIS case (the decoy one) is it is not one of them. this is just damn good police work. it is in no way, shape or form entrapment which is why the entrapment defense was not allowed. it’s not even remotely a close call
August 9, 2010, 8:58 pmSuperSkeptic says:
Whit, query: If you think it categorically moral for the police to do this, would you abolish the entrapment defense all together?
August 9, 2010, 8:59 pmZack says:
whit,
Despite your intimate knowledge about my “bias,” I think you’ve missed the point of the post. EV’s post was about the logical fallacy identified in the concurrence (the assumption that “to prevent [the] commission [of a crime]” and “to encourage [the commission of a crime]” . . . are opposites, or at least incompatible.”), not the validity of this sting operation. I haven’t read any post that says this situation was entrapment, and even the judge who wrote the opinion came to that conclusion.
My post addressed whether targeting of the sting was relevant to a discussion about the prevention/encouragement relationship. My point was that because the sting in question was not targeted, it may have ensnared someone whose natural laziness would have normally been sufficient to prevent him from committing a crime. Accordingly, this particular sting may have increased the net number of crimes committed, potentially making the judge’s position less untenable. Personally, I agree that the sting was legal and I don’t have any particular moral problem with technique.
August 9, 2010, 8:59 pmcboldt says:
– It just made people like me afraid to grab a lost wallet to try to find the owner, making it more likely that someone less honest will grab it. –
August 9, 2010, 9:02 pmThat’s life in the big city. Pretty much, “you’re on your own.”
Operation Lucky Bag
whit says:
i’m not saying that SOME stings couldn’t be morally problematic, not to mention legally problematic
i am saying THIS sting imo in no way, shape or form could ever be considered entrapment and/or morally suspect.
this is a cut and dry classic example of good police work and done so that it doesn’t come close to entrapment
look into yourself for a second. assuming arguendo you are not a thief, would you steal a car because you saw it sitting there with the keys in the ignition?
i can give an absolute unequivocal “NO” to that question as could any other normally law abiding individual.
fwiw, i have taken a LOT of “i just left the key in the ignition for a moment” theft cases…
“i just ran into subway for a second to pick up my order”
“it was really cold so i was just warming up my car in the driveway for five minutes”
etc.
the latter happens EVERY SINGLE WINTER during our first cold snap. over and over and over again. and yes, we have tried to educate the public. note also it’s not illegal to leave your engine running if it’s in your driveway and unattended in my jurisdiction. just colossally stupid.
one year we had a full sized van full of scumbag thieves driving around a neighborhood looking for cars with their engine running at o dark thirty in the morning. when did they stop? when everybody in the van (a half dozen iirc) had stolen a car.
among other things, the idea that somebody leaving their keys in the ignition is some kind of cop invented scenario is ludicrous.
August 9, 2010, 9:04 pmwhit says:
good.
and fwiw, i see no logical fallacy, only wordplay in the concurrence and some dumb judge’s ridiculous moral posturing.
i am well aware of what the claimed fallacy is, but it is not a fallacy.
August 9, 2010, 9:07 pmwhit says:
absolutely not. i think entrapment is abhorrent, just like the conviction of the innocent is – whether the latter occurs through really bad luck or lying victims or whatever.
cops absolutely should not entrap people. nor should anybody
this is absolutely not entrapment
this is not just NOT entrapment. it is a good, moral, effective, and excellent example of police work
August 9, 2010, 9:09 pmwolfefan says:
Here’s an article about a school that (allegedly) used a student as bait for a rapist. It didn’t go so well.
http://www.post-gazette.com/pg/10211/1076338-455.stm
h/t Radley Balko at http://www.theagitator.com
August 9, 2010, 9:11 pmDavid M. Nieporent says:
I think that last statement is wrong. In the scenario you describe, the police are trying to catch someone who has already committed a rape, and to stop the rapist from committing future crimes. Those are core law enforcement functions. That’s in no way analogous to the actual fact pattern, the one Mosk is complaining about, where the police are actually manufacturing a crime. While it’s true that this isn’t entrapment, there’s no reason to believe that the person arrested would have stolen a car at all if the police hadn’t run their sting. The only way it’s analogous is if there’s a specific car theft ring out there that police are targeting with this sting.
August 9, 2010, 9:11 pmZack says:
So you’re saying that you agree with the judge that preventing the commission of a crime is incompatible with encouraging the commission of a crime?
August 9, 2010, 9:14 pmwhit says:
imo, it makes people uncomfortable because they have these predefined roles in their mind – mostly from media.
it’s like the old warner bros. cartoon with the sheepdog and the wolf clocking in each day, doing their thing, then going home.
i LOVE stings like this . i also liked the one where (iirc it was) providence PD did a warrant sweep by sending out letters claiming the people had won some prize etc. and all these people showed up and got arrested.
it’s creative, it’s effective, and on the whole it uses less resources and creates less risk to the public in the long and the short term than conventional police response to property crime which is either to saturate the area with cops – which at BEST just makes the criminals move to the next neighborhood … and when they do find them, they get into dangerous vehicle pursuits or even foot pursuits (very dangerous for cops) etc.
let’s let the mountain come to mohamed so to speak. instead of runnign around and almost always responding long after the criminal has got away and writing routine reports that go nowhere, let’s CATCH the bad guys. i mean, god forbid. what a concept
the reality of most property crimes is that they are quite easy to get away with, and criminals know that. even the total morons can usually do several before they get caught. a GOOD criminal can and does do dozens or scores before he gets caught – if he ever does
i WANT cops to be proactive and this is the perfect example to me of behavior that is effective, moral and a much needed adjunct to conventional “respond after the fact and write a report that will sit in headquarters (electronically these days).”
fwiw, we are so understaffed, if i do a report where i do not literally hand the detectives a suspect on a silver platter – they won’t follow up. it’s that simple. this is most true in identify theft cases. it’s just reality.
the other day i ended up writing a warrant (almost never done by patrol officers) because the detective told me she was going to blow it off. we managed to find enough crap that the postal inspectors are taking the case, so something actually will get done.
many agencies won’t even send a cop to respond to vehicle break-ins. some won’t even respond to burglaries.
the ONLY reason we respond to auto thefts is to get the victims’ signature so we can put the car into NCIC as stolen (a liability thang)
among all the other reasons to support stings – the cost effectiveness is a good one
make no mistake. your average thief, and these stings cathc— your average thief are prolific.
we had one we put away and literally the radio in that district was noticeably silent. it was like nearly all the crime reports went away. one person has THAT much impact.
August 9, 2010, 9:18 pmChris Travers says:
I’ve never been extremely comfortable with the idea of police stings. It seems to me that there is a lot of room for problems to grow out of these practices. Again, I am not saying they should be illegal, or even that they shouldn’t be used. Maybe they should be. Maybe they shouldn’t be. I think that’s for the legislature to decide.
My concern is based on a combination of two things: the first is that there are cases where entrapment happens, particularly on a federal level (Randy Weaver, certainly a scumbag IMO, seems however clearly a victim of one). Given that the line is fine and that officer or informant testimony can be very hard to impeach at trial, I think it might be a good idea to stay way from these things.
So yes, I think there are reasons to be concerned and to be uncomfortable or even morally opposed to the practice. But as the judge here notes, that is not enough to make it against the existing law, nor should it be.
August 9, 2010, 9:25 pmwhit says:
no, i am saying it is not an issue because the crime encouraged by the sting VICTIMIZES NOBODY which makes it qualitatively different than the other crimes – the ones we respond to after the fact and almost never catch anybody.
it might take 20 or 30 of those for every bad guy we catch, and even in that case, there may not be enough evidence to convict and he might even get convicted and be in fact innocent
whereas any guy we catch in the sting is clearly guilty as #A$(#$* and there goes one bad guy into the jail.
the problem with the nice little pat phrase you just rattled off is that it fails to distinguish between crimes where people are hurt (and society in general is hurt) and crimes where nobody is hurt and the bad guys are locked up.
i prefer the latter
August 9, 2010, 9:25 pmFub says:
That’s nuts. If you have a box of powdered milk in your shopping bag then you could go up for life as a “kingpin”.
It’s not even a deterrent except to dissuade people from picking up litter.
But I believe it.
In a town near me some years ago, city police had a stakeout looking for hookers and johns. A local guy regularly picked up his wife on the same corner on the way home from work. Both were high level tech employees and pretty well off. He stopped and she got into his car. As soon as they drove away a marked cruiser pulled them over and arrested them for soliciting.
Arrestees were not amused. It made the papers, talk shows, and the city council meeting. That particular series of stakeouts ended very abruptly.
August 9, 2010, 9:26 pmwhit says:
i think that’s a silly concern. ANY procedure can be abused. hey, rape victims can lie. therefore, let’s stop prosecuting rapes!
that’s your logic.
what you do is have clearly defined rules, penalties for breaking them, etc.
but this idea that we don’t do X (especially when X is remarkably effective and beneficial as explained) because it’s POSSIBLE that X could be abused.
by that logic, cops should not carry guns. they can be abused. we should not give cops the power of arrest. that can be abused.
etc. etc.
do you see where i am going?
and my point about stings is that they are generally LESS likely to result in abuses, since they are almost always videotaped and well planned
August 9, 2010, 9:28 pmwhit says:
except police are “manufacturing a crime’ that is quite common – auto theft. like i said, i’ve taken plenty of ” i just left my keys in the car for a minute” auto thefts.
i agree with your distinction in that the two scenarios are distinguishable. i just don’t think the distinction makes any difference in terms of the propriety of the sting.
and again, proof that abuses can
August 9, 2010, 9:31 pmMalvolio says:
I’m stunned anyone opposes the police behavior here.
Imagine a world where half of all parked cars were in fact bait cars, or even a tenth. It seems unlikely that there would ever be a car theft. Who would be willing to do the research necessary to distinguish a bait car from a stealable one? (Of course, there probably wouldn’t be a lot of resources left to investigate other sorts of crime.)
And this “but for this opportunity, he wouldn’t have committed a crime” is nonsense. Eventually, everyone has the opportunity to commit a crime. I would prefer that people desist from abstract morality, but for the amoral few, I’d settle for their being deterred by the fear it may be a trap.
August 9, 2010, 9:38 pmChris Travers says:
I’ve been slammed in the past on this forum by others for suggesting that we should insist on evidence beyond victim testimony and that victim testimony by itself should, if unsupported beyond that, mean there is, as a legal matter, reasonable doubt.
The reason for deferring to the legislature on this is that there could be many different solutions to the problem of abuse. For example, one might require that, to the extent possible, the entire operation must be recorded. That would be a clear way to avoid abuse. I am sure there are a hundred other measures that could be decided on one way or another. That’s the legislature’s job. It’s not the court’s.
But “everything is subject to abuse” is a poor argument for simply dismissing concerns. Again, I don’t think you will find many people who see this case here as a Constitutional issue or even one that provides hard legal questions as far as it goes. However, the fact that it can be abused, and that the line between abuse and legitimate activity may be a fine one may be a reason to think about legislatively mandating certain guidelines regarding it.
I am puzzled even why this would be an issue for law students. The judge basically says this is legally legit but morally troubling to him. He isn’t making a legal argument. He might not even be making much of a logical argument. He’s just expressing a concern.
August 9, 2010, 9:40 pmFub says:
I agree on this point, and natch on the point that it ain’t entrapment.
I have no clue what was in Justice Mosk’s mind about “morality” on this one.
August 9, 2010, 9:40 pmSuperSkeptic says:
But aren’t those who are legally/technically entrapped still scumbags? After all, they are certainly not purely innocent. Ultimately, they had a choice whether or not to commit the crime.
August 9, 2010, 9:42 pmcboldt says:
– (Randy Weaver, certainly a scumbag IMO, seems however clearly a victim of one) –
August 9, 2010, 9:42 pmWeaver may have been set-up, framed, innocent. The short rifle/shotgun he was accused of providing may have been shortened after he delivered it to federal agents.
And then there is the question of whether or not the underlying law is constitutional – the logic of the 1939 Miller decision, if applied, made the statute unconstitutional even if it is violated.
Leopold Stotch says:
I can scarcely believe there’s a debate here. It would never occur to me to take another person’s car without permission to go joyriding, no matter how easy it might be. Anyone who does that is a thief, and deserves to be treated as one. There’s nothing problematic here. If my six year-old did something like this, I’d probably buy the temptation excuse. A competent adult? No way.
August 9, 2010, 9:59 pmwhit says:
not necessasrily. because the whole point of entrapment is it diminishes choice, and sets up duress, etc.
people shouldn’t be goaded into crimes by the cops. heck, people shouldn’t be goaded into crime by ANYBODY
in some cases (especially where the goading is done by other than police) there may still be criminal liability, albeit mitigated and/or statutorily reduced, but it’s still a different thing.
entrapment is bad. giving criminals the opportunity to… #$($#A themselves, so to speak is good police work.
i will repeat this for the studio audience. nobody but a scumbag thief would take a car merely because it has the keys in the ignition. i don’t think any rational person disagrees with that, and i am happy to see some people here at least acknowledge that.
there is right and wrong. stealing is wrong.
August 9, 2010, 10:12 pmwhit says:
thank you. and fwiw, based on what little criminology i have studied (apart from real world experience), a criminals’ perception that he may be caught is a much better deterrent than his knowledge that punishment is stronger.
in other words, we are getting into criminal game theory here, but if a criminal thinks
1) there is a 50% chance i will get caught, and if i do i might get 6 months for this offense, he is much less likely to commit the crime than if
2) there is almost no chance i will get caught, but if i do i might get 5 yrs for this offense
and based on my discussions with criminals, the theory holds up.
all the other problems with draconian penalties aside (like the fact that they suck), we are better off increasing the fear of apprehension vs. the penalties, all other factors remaining equal
August 9, 2010, 10:16 pmOwen H. says:
I am confused by Mosk’s statements. First off, I thought judges weren’t supposed to be making rulings on morality. But worse, his logical progression would seem to justify letting a thief go, if you forgot to lock your door and he couldn’t resist the temptation.
August 9, 2010, 10:36 pmSuperSkeptic says:
Then, under your theory, a legitimate entrapment defense should only hold if it actually rises to duress. Goading, badgering, cajoling, or importuning (a strong case of which is what the entrapment defense consists of – not quite duress) should not be enough. You’ve repeatedly asserted that nobody is victimized by a sting such as this one. But the moral argument in opposition to the sting (the one suggested by judge Mosk) implies that the person caught by the sting is (or at least can be) the victim. And this is the same morality that undergirds the entrapment defense, i.e., that the entrapped has become a victim.
August 9, 2010, 10:38 pmCatoRenasci says:
Entrapment has been controversial since the defense was first recognized in modern form in Sorrells v. United States 287 U.S. 430 (1932), which adopted the so-called “subjective test”. There has been rather significant movement away from the subjective test over the years, with more courts agreeing with the minority of the Supreme Court which urged an ‘objective’ or ‘hypothetical person’ test. California adopted the ‘hypothetical person’ test in People v. Barraza 23 Cal 3rd 675 (1979).
Both tests are highly unsatisfactory, and both have been heavily criticized on many grounds. The subjective test fail to examine intention by conflating it with predisposition; the hypothetical person test ignores intention by concentrating exclusively on an “objective” standard for police conduct.
Ironically, California formerly had its own unique ‘origin of intent’ test, first articulated in People v. Benford, 53 Cal. 2nd 1 (1959), which was arguably far better suited to avoid the difficulties of both tests.
For a discussion of the these issues, see Comment: Causation and Intention in the Entrapment Defense, 28 UCLA Law Review 859 (1981).
August 9, 2010, 10:39 pmSuperSkeptic says:
Thanks CR
August 9, 2010, 10:54 pmOrenWithAnE says:
This not a ruling, it’s dicta. The judge is explaining that what the law requires and making clear that he does not consider it a moral judgment of the policy itself.
August 9, 2010, 10:59 pmJohn David Galt says:
I have no sympathy at all with the “entrapment” argument here. If it takes a locked door to “keep you honest,” you’re simply not honest.
August 9, 2010, 11:02 pmFub says:
I’ve heard there is research to support that. Don’t know cites though.
August 9, 2010, 11:09 pmwhit says:
no, that is not my theory. i simply offered a very short example of why entrapment is bad.
let’s stop playing games.
entrapment is bad
this case IS NOT entrapment
and if the judge implies that this thief is a victim, then he’s an idiot
this guy is an auto thief. the fact that the vehicle he stole was purposely left there by the cops as bait vs. innocently left there by some moron is irrelevant.
either way it makes him a thief.
August 9, 2010, 11:12 pmhth
whit says:
another reason why this is a good strategy imo is that it is so in line with libertarian principles and the theory of the bill of rights (and especially the 4th) which distilled down to it’s essence says – the government should leave people alone unless it’s got a damn good reason to bother them.
we see all sorts of issues with terry stops, pretext stops, alleged racial profiling, pursuits, etc. etc. etc.
and clearly, innocents (and i mean 100% innocent) are often stopped pursuant to terry etc. it may be a brief inconvenience, but it’s still an example of govt. power restricting citizen’s movements and freedom
this type of operation (decoy) is the most “pure’ in that regards. the ONLY person the cops will be intercepting is the one that tries to steal the car. it truly does leave the law abiding alone, and strictly targets the person who commits the actual crime (in fact committed vs. PC or reasonable suspicion) right in front of the cop’s (and video camera’s) eyes.
i find it not at all surprising that the same people who criticize those other uses of govt. authority will now criticize even this method that avoids ALL of those problems – no innocents placed at risk, no reliance on faulty lineup procedures, no issues with mishandling of forensics, etc. etc.
the cops simply sit there and wait for the criminal to commit the crime right in front of their eyes without ANY entrapment, goading, coercion or anything like that, and the kneejerkers STILL have a problem with it, some going so far as to state that the criminal may in fact be a VICTIM
it truly says more about those who critique these police op’s than anything else – a predisposition to find fault with the process of bringing bad guys to justice
August 9, 2010, 11:22 pmSuperSkeptic says:
Whit,
I’m not playing games, the judge isn’t an idiot, and I think you’re going a bit too far with your position, which makes it somewhat inconsistent. I realize that this is not your position, but I mean to suggest that it should be your theory in order for you to be consistent. You assert that anyone who voluntarily commits a crime is automatically a scumbag. That is somewhat inconsistent with acknowledging an entrapment defense (implying a degree of excusable victimhood) separate and apart from actual duress.
His moral argument (as bare and undeveloped as it is) suggests a continuum of victimhood – the law of entrapment sets the legally cognizable line. As others have suggested, the tests used to draw that line (and likewise the line of what is duress) are imperfect and can lead to a result not consonant with the perception of morality of others – even good people. I can freely concede, like judge Mosk, that there was no legal entrapment here, while still being concerned about the moral issue of the police action.
August 9, 2010, 11:29 pmJ.T. Wenting says:
One can also prevent future crimes by locking up everyone who is technically capable of committing such a crime.
For example to prevent all computer crime, lock up everyone who has access to a computer indefinitely.
To prevent car theft, lock up everyone with hands and feet (thus everyone who could conceivably walk up to a car and use some sort of tool to open it).
So using that logic, we should just lock up the entire population, as that would prevent them from being ever tempted to commit a crime by making it impossible for them to do so.
August 9, 2010, 11:42 pmwhit says:
you are playing games. i never said entrapment was limited to duress, and i don’t feel like going into a long wank discussing entrapment because it’s largely irrelevant here. nobody in their right mind is claiming the decoy is entrapment
you ARE playing games, the perfect example being of how you went from my saying that
“not necessasrily. because the whole point of entrapment is it diminishes choice, and sets up duress, etc.
”
into your claim that :
“Then, under your theory, a legitimate entrapment defense should only hold if it actually rises to duress”
UTTER RUBBISH.
i said NO such thing, claimed no such theory.
that’s either games, poor reading comprehension or intellectual dishonesty.
i chose the least egregious one, because i’m willing to cut you some slack
you’re welcome
hth
in the future, if you want to address stuff i actually say, and not strawmen you make up – get back to me
August 9, 2010, 11:55 pmwhit says:
and one can also prevent all bad police shootings by prohibiting them from wearing guns, and get rid of all bad arrests by taking away the powers of arrest.
we can also prevent (at least penile-vaginal or penile/anal) rape by forcing women to wear impenetrable chastity belts, and oh isn’t this fun?
this is about one thing and one thing only – catching a car thief who is stealing a car. it’s not minority report, it’s not any other fantasy story and it is not a violation of anybody’s rights. it’s MORE respectful of everybody’s rights in practice, because the ONLY person who gets stopped and cuffed is a person who is clearly guilty as hell vs. a complaint by a mistaken/lying victim or witness or just plain being in the wrong place at the wrong time and happening to look just like the perp
yes, i already anticipated the playing of such games, which is why i already addressed those points. read above.
this isn’t about pre-crime a la minority report either (which i again, already addressed)
this is about people who are actually committing crimes, in view of the police and getting arrested for it
it’s something that anybody who actually believes in bringing scumbags to justice, and in protecting people from thieves would support.
as soon as we start a pre-crime division, get back to me.
i’m a libertarian. it does not follow that i think police are required to look the other way when thieves steal. i want cops to catch thieves. and especially when they can do it the way they do it in decoys where there is essentially NO risk of an innocent being caught (which is in contrast to nearly every other method of investigation… victims lie, witnesses lie, coincidences happen), there is no danger to innocents (a la pursuits), there is no inconvenience of innocents (a la terry stops) and a bad guy is caught in the act, on video, with evidence to spare and can be put away for the crime he commited, and NOT the crime he “might” commit a la all these false analogies to scifi stories.
August 10, 2010, 12:00 amrilkefan says:
Another (science-inspired) way of looking at this is the idea of false positives. Some times you don’t want to give a (medical) test because it doesn’t tell you something useful, for example because the test is risky or the cure for the tested disease is only just better than the disease itself and you very much don’t want to treat the healthy.
, none of whom would have committed the crime in question without the sting (which e.g. intentionally made the bait more tempting than the average stolen car), and will as a consequence not be able to support his family and otherwise play a useful role in society but will instead be a burden on it. Maybe the police spreading the rumor that they’re doing stings would be as effective. Maybe running the sting but letting the perp go having been suitably scared would be even more effective. Maybe the police deciding to target you for stings tailored to your facebook interests would be applauded by you, maybe not.
August 10, 2010, 12:08 amChris Travers says:
I don’t think it should be limited to duress. I can think of all sorts of other behavior I would find to be entrapping that might not narrowly fall into that category, esp. where strict liability crimes might be involved. The entrapment by the federal informant in the Randy Weaver case comes to mind. (As a note I have no sympathy for White Supremacists, but hey, if we want rule of law it protects them too.)
For example, suppose a undercover policeman befriends a convicted felon. One day, he asks the convicted felon to take, say, a backpack from one place to another for him. In the backpack is a firearm. The police officer doesn’t inform the convicted felon of this, hands the backpack to him and the sting is completed. Strikes me that this is entrapment even if there is no duress.
Again, not going through all the facts of this specific case, I don’t know how I feel about it. I will take the judges’ word that it is legit. However, this is an area where I think our civil liberties are in danger and consequently it’s a matter for individuals, judges, and legislators to do what they can to manage the risk.
August 10, 2010, 12:10 amFub says:
What amazes me is that these bait car operations work after the first one with a particular car in any particular area. Professional car thieves didn’t all just fall off the turnip truck. They know the chop shops, and each other. You’d think word would get out fast.
August 10, 2010, 12:20 amwhit says:
groovy. but he still stole a car and was still arrested for it
i want cops to arrest people who steal cars.
if your willpower is so weak that the mere sight of a car with the keys in the ignition overpowers all the forces of good, and you feel you must steal the car, then blame nobody but yourself if you do so and get caught
i don’t care if the cops left the car there, or sally the soccer mom
either way, it’s a theft of the auto, and either way you should go to jail
August 10, 2010, 12:32 amwhit says:
and i never said it was limited to duress. i suggest i probably have more training in the law of entrapment than 99% of lawyers, let alone cops, due to my specific undercover training
my point is that NOBODY can reasonably claim this case is entrapment, so i’m not even going to get into all the little nuanced details
there are many difficult cases. this is not one of them
August 10, 2010, 12:36 amFub says:
I agree with that, and i think Whit also does in principle. I also think that in this case, there’s no question of entrapment.
The more general issue of what is and what isn’t acceptable, or what is entrapment, is very important. It’s just that in this case it’s overwhelmed by the clear cut facts. So discussing those issues becomes more like “if the dog had stopped to scratch, he wouldn’t have caught the rabbit”. But he didn’t stop to scratch, so he caught the rabbit.
August 10, 2010, 12:37 amwhit says:
“For example, suppose a undercover policeman befriends a convicted felon. One day, he asks the convicted felon to take, say, a backpack from one place to another for him. In the backpack is a firearm. The police officer doesn’t inform the convicted felon of this, hands the backpack to him and the sting is completed. Strikes me that this is entrapment even if there is no duress.
”
this isn’t even a CRIME, setting aside the issues of entrapment.
in my jurisdiction, for VUFA to occur (felon w/firearm) the state of mind is “knowingly”
this is worse than entrapment. it’s simply a scam, a trap, and like i said, unless the defendant KNEW there was a firearm, it’s not even illegal
August 10, 2010, 12:39 amwhit says:
“Chris Travers: However, this is an area where I think our civil liberties are in danger and consequently it’s a matter for individuals, judges, and legislators to do what they can to manage the risk.”
ANY area where govt. has authoritah over you, your civil liberties are in danger, to some extent. i don’t care if it’s code enforcement for a barking dog, littering, speeding enforcement, tax code enforcement, murder enforcement, or whatever
but in THIS case, there is exactly zero reason to believe (the judge is a wrong) that there is anything untoward going on, and certainly not a civil rights violation.
the first people to “manage the risk” are the individual officers on the sting… i see no evidence of wrongdoing or improper procedure. no evidence their dept policies and procedures need work, either – considering this sting.
this discussion is ridiculous in that we have an example where cops did (apparently ) everything right, and no innocents were inconvenienced in any way, shape or form, and the general response is “yea, but” and then we are led down bunny trails of thought crime, pre-crime, entrapment, and everything but the spanish inquisition
seriously.
August 10, 2010, 12:45 amwhit says:
bottom line. he stole a car. that’s a crime. he was witnessed committing the crime. he was arrested.
none of your responses are the least bit relevant since thye don’t involve people ACTUALLY COMMITTING CRIMES
August 10, 2010, 12:51 amChris Travers says:
In which case we are all on the same page. As I say, I defer to the judges, all of whom said there was no issue in entrapment. There was no dissent.
August 10, 2010, 1:01 amwhit says:
i agree. i still think the judge’s concurrence was ABSURD, but it certainly didn’t imply that the officers entrapped anybody
August 10, 2010, 1:16 amrilkefan says:
The core issue is whether the police should be acting in ways that lead to people who would otherwise not have committed a crime going to jail. I want them to stop people who are seeking on their own initiative to commit crimes. It’s not the same thing. One has to do a cost-benefit analysis, not just a benefit analysis. The state can cause people to commit crimes simply by outlawing common activities and not informing everyone. There’s no question that people committing those acts are criminals, but this isn’t a proper way for the state to behave. The system is normally set up to try to dissuade criminality, to warn people away from bad actions, not to put attractive felonies in their paths.
“Pray ‘Lead us not into temptation’” as the saying goes.
August 10, 2010, 1:22 amCrazyTrain says:
Can I suggest not citing to the Pacific Reporter if that is the only citation to a California Supreme Court case? I believe that the Blue Book says you should do that, but actual, best practice in California state and federal courts* is to cite to the Cal.4th/Cal.3d/etc. cite (i.e., the “California Reports” not West’s “California Reporter”). In addition to that citation format being the best practice, it is also the clearest practice: that citation unambiguously says it is the California Supreme Court and there is no need to put the court name in the parenthetical. (Unlike the Pacific Reporter which includes more than one state’s highest courts and the California Reporter which includes both the California Supreme Court and the California Court of Appeal.) Likewise, citations to cases from the California Court of Appeal should be to the Cal.App.4th/Cal.App.3d, etc., for the same reason: there is no need to put the court name in the parenthetical as it is unambiguous which court is being cited simply by looking at the citation.
*Unfortunately, some 9th Circuit slip ops use the Pacific Reporter cite as well, but this is a sign that the Judge’s law clerk likely has no experience in California and learned citation for a law review. Most of the time, the citation, even in 9th Circuit slip ops, is to to the Cal. Reports.
August 10, 2010, 1:35 amalex says:
this has been one of the most entertaining threads of comments ever. something touched a nerve here :-/
August 10, 2010, 1:36 amwhit says:
except leaving a car with keys in the ignition does not “lead to people who would otherwise not have committed a crime going to jail”
people leaving keys in their car is not at all uncommon. therefore, by the police leaving such a vehicle they are not doing what you reference above
the thieves are stealing a car that has the keys in the ignition. it is irrefutable that citizens sometimes do this (i have firsthand knowledge of this) and the cops are just setting up the EXACT same situation that criminals encounter when it is not a police decoy. sorry, your analysis fails
the rest of your post is irrelevant to this case. the state has, and i would suggest 99%+ of people agree with this , criminalized auto theft.
i haven’t reviewed every penal code in every state, but i am PRETTY confident it is illegal everywhere in the US
the cops are not creating a new crime, nor is the legislature. they are not enticing, entrapping, coercing, or in any other way causing people to commit crimes they wouldn’t otherwise commit
it is simply a matter of luck (or lack thereof) that a car thief encounters a vehicle with the keys in the ignition that HAPPENS to be surveilled by the cops and owned by them (or used by them)
tough for the thief.
it’s auto theft, it’s illegal, and it most definitely IS a proper way for police to behave
it’s one of the best things they can do, because it actually brings bad guys to justice while sparing the innocents the hassle of being stopped, searched etc. even if pursuant to law – its still a hassle.
i don’t care how the system is “normally set up”. i care about what is legal, moral and effective
cops who started doing these decoys were thinking outside the box. that should be encouraged.
and if they can create methods to catch thieves or other criminals that are legal, moral and effective i encourage them to do so. it most definitely is a proper way to behave and i applaud them for it
the only people “harmed” by such procedures are thieves. and they are harmed by due process – which is how it works whether it’s a cop decoy car or sally soccer mom’s car (and the cops get lucky)
in the decoy case, we don’t have the risks of the pursuit, or the loss of sally’s car (at least temporarily)
yea for the cops. they win, bad guys lose, society wins
August 10, 2010, 1:37 amwhit says:
i’ll admit it. it literally disgusts me that some people think the job of cops is to be reactive. without a surveillance society (which would be FAR worse. england already has one btw), we have a way to specifically surveil a potential crime scene. no innocents are harmed. and only a thief is apprehended. the risk fo pursuit is eliminated, the risk of arresting an innocent is eliminated (contrast with normal police procedure) and no victim is deprived their property
and STILL those who sympathize more with thieves than with victims of thieves find fault with it. “i’m just not comfortable with it” and other such tripe
i want proactive cops. i want cops who obey the law, respect people’s rights, and think outside the box. i don’t want reactive cops. i want cops to do more of this stuff, not less.
fwiw, when we did some of our bait and decoy training, we learned from british columbia cops. they have been WAY ahead of us on this stuff. for me to admit that canada is ahead of us in anything says a lot :)
August 10, 2010, 1:42 amOrenWithAnE says:
I can get behind this.
August 10, 2010, 2:33 amOrenWithAnE says:
I think this is the point here — is the guy a thief or an opportunist? A thief isn’t merely ‘someone that steals’, it indicates something far deeper. It’s possible (although given the fact pattern in the case, far-fetched) that if not for the bait car the defendant might never have stolen a car for as long as he lived.
I wouldn’t bet on it though.
August 10, 2010, 2:39 amwhit says:
i’ve made this point before. i’ll make it again.
people leave their keys in the car, even in the ignition. in the real world (apart from decoys)
i’ve taken a # of such stolen reports.
the most common versions are
1) early in the morning during a cold snap
2) outside restaurants, etc.
i think thiefs in general ARE opportunists. and 20 yrs of police experience bears this out.
i’ve interrogated scores. many of their thefts are because they were in some place and an opportunity presented itself
sure, some go out and plan thefts. but many others are crimes of opportunity.
another popular one is that they will troll wealthy neighborhoods looking for garages that are left open during the day (or sometimes night) and run in and grab something
once while on patrol i woke a guy up at 0200 hrs because his garage door was open and tons of expensive stuff just sitting inside. he had fallen asleep on the couch and was grateful
but in brief, imo this guy is not MERELY an opportunist
he’s a thief who took advantage of an opportunity – as they often do
because here’s the rub. you could present this opportunity to the VAST (to put it mildly) # of people and they wouldn’t steal the car.
would you?
sure, the defendant MIGHT never have stolen a car for as long as he lived, but i doubt it. and clearly, if he was willing to steal a car just because somebody left the keys on it, he would do lots of other criminal stuff
but we aren’t prosecuting him for that. we are prosecuting him for the crime he committed – one that NO person not disposed to committing such crimes would be enticed into merely by keys
btw, a lot of these bait cars have video cameras IN THEM. the videos are hilarious. i suggest that if many people here had seen these videos, they might have a different take on this.
fwiw, in my two party consenthyperliberalstate, i doubt we could plant video cameras WITH AUDIO inside bait cars.
but the videos are hilarious. scores of them on youtube. i just checked.
like i said, i am as libertarian as they come. when it comes to drug use, prostitution, etc. i think people should be left alone.
when it comes to stealing???? book these guys
August 10, 2010, 3:37 amwhit says:
me 2!
August 10, 2010, 3:40 amDavid Schwartz says:
Plus, there’s another huge benefit to this. We all know that you should be able to walk down a dark alley in the middle of the night with $100 bills sticking out of your pockets in perfect safety. But you can’t, because opportunistic thieves will rob you. If the police routinely had bait people walking through streets with bills sticking out of their pockets, thieves would think twice before picking on easy targets. This would make us all safer.
If the police had attractive, drunk ‘bait girls’ stumbling out of bars and appearing to search for their car, then it would be much safer to stumble around drunk outside a bar for real.
These kinds of things keep honest people honest and make us all safer from being taken advantage of when we’re, through mistake or inattention, at our most vulnerable.
I would agree that it’s a mistake if the police created a fact pattern that basically never happens in real life. But people do leave their cars unlocked. People do leave their keys in their car. Thieves do search for opportunities and don’t always wait for them to fall into their laps. (Why did someone tip this guy off about the car?)
August 10, 2010, 4:47 amDavid M. Nieporent says:
But we don’t want police catching “bad guys.” We want police catching criminals. Now, by that I don’t mean that the person caught here or in similar operations is a fine, upstanding human being. We can all agree that he isn’t. Nor do I mean that he wouldn’t have committed an actual crime in the future; what I mean is that he might not have committed an actual crime in the future.
Now, again, by actual crime I don’t mean that what he did here was innocent; what I mean is exactly what you said: that there’s no actual victim here. And if he never was going to commit a crime with an actual victim, then the police haven’t actually accomplished anything. (There’s one other possibility which I’ll discuss below.)
The problem is that you seem to have a binary mental model; that is, you divide the world into people who would never steal a car given the opportunity and people who would. The latter are “bad guys,” so arresting them is good. But in reality there are three types: people who would never steal a car given the opportunity; people who would; and people who might, but who probably will never get an opportunity. Arresting people in the last category is not in and of itself a good thing. The fact that most criminals are opportunists does not mean that most opportunists are criminals.
Yes, but the question here is whether stings like this generally catch “good criminals” who are going to “do dozens of scores before he gets caught,” or whether stings like this generally catch opportunists who would probably never have committed a crime at all.
You say that this is “effective,” but effective at what? Making an arrest that will stick? Sure — but that shouldn’t be the goal. As we’ve discussed, there’s no victim here, so it isn’t effective at helping an actual victim. At preventing this individual from committing a crime in the future? Maybe, maybe not. Once again — what are the odds this individual would have actually committed a crime? (Balance that against the odds that he’ll reoffend, or even escalate, now that he has been made into a convicted felon by the sting operation.)
Now, there’s one other possibility, which I alluded to above, which could justify this on a cost-benefit basis: deterrence. If the success of such stings causes other would-be thieves to rethink their career choices, then it might be worth it.
August 10, 2010, 5:32 amDavid M. Nieporent says:
That’s an empirical question, and the answer is not something that can just be handwaved.
It assumes either (a) that there are only a relative handful of likely criminals, such that catching a few makes a significant dent in the population thereof; (b) catching a few will actually deter a much larger number; or (c) police can catch a lot of likely criminals this way. It also assumes, as I said above, that the people caught were likely criminals, rather than just lucky (or unlucky, in this case) opportunists.
August 10, 2010, 5:45 amwhit says:
“But we don’t want police catching “bad guys.” We want police catching criminals. Now, by that I don’t mean that the person caught here or in similar operations is a fine, upstanding human being. We can all agree that he isn’t. Nor do I mean that he wouldn’t have committed an actual crime in the future; what I mean is that he might not have committed an actual crime in the future. ”
people who steal cars are criminals. let’s not play word games. by “bad guys” you know damn well i am referring to criminals. i’m not talking about people who eat their steak medium rare.
and again, this is just the most absurd sophistry. he is STEALING a car. this isn’t minority report. we are not arresting him for propensity to commit crime. we are arresting him for the crime he committed.
“Now, again, by actual crime I don’t mean that what he did here was innocent; what I mean is exactly what you said: that there’s no actual victim here. And if he never was going to commit a crime with an actual victim, then the police haven’t actually accomplished anything. (There’s one other possibility which I’ll discuss below.)”
there IS an actual victim. whoever owns the car (fwiw, when we used a bait car we borrowed it from another agency. it wasn’t even our car)
“The problem is that you seem to have a binary mental model; that is, you divide the world into people who would never steal a car given the opportunity and people who would. The latter are “bad guys,” so arresting them is good. But in reality there are three types: people who would never steal a car given the opportunity; people who would; and people who might, but who probably will never get an opportunity. Arresting people in the last category is not in and of itself a good thing. The fact that most criminals are opportunists does not mean that most opportunists are criminals.”
utter rubbish. this isn’t about what people WOULD do. it’s about the acts they commit. i judge people by their acts. this person’s act is theft.
fwiw, i have seen cars with the ENGINE RUNNING and keys in ignition that i could have stolen, let alone just the keys in the ignition
cops shoudl arrest CRIMINALS (sorry “bad guys” was too colloquial for you)
this guy is a criminal.
“Yes, but the question here is whether stings like this generally catch “good criminals” who are going to “do dozens of scores before he gets caught,” or whether stings like this generally catch opportunists who would probably never have committed a crime at all.”
again, this is simply absurd. do you ever go out in public? have you never seen a car where somebody has left it runnign with the keys in the ignition? i have. those are easier to notice because… and here is the part you are missing (because you don’t think like a cop)… MOST PEOPLE WOULD NEVER NOTICE THE KEYS IN THE IGNITION BECAUSE THEY DON’T WANT TO STEAL A CAR.
that’s the kind of thing that CRIMINALS tend to notice because they are LOOKING FOR AN OPPORTUNITY to commit a crime
and gosh darnit, this one found one. and got caught.
“You say that this is “effective,” but effective at what? Making an arrest that will stick? Sure — but that shouldn’t be the goal. As we’ve discussed, there’s no victim here, so it isn’t effective at helping an actual victim. At preventing this individual from committing a crime in the future? Maybe, maybe not. Once again — what are the odds this individual would have actually committed a crime? (Balance that against the odds that he’ll reoffend, or even escalate, now that he has been made into a convicted felon by the sting operation.)”
it’s effective at taking a scumbag thief off the street. it really is that simple. you take a car merely because somebody left the keys in it, you are a scumbag criminal.
period
the mental gymnastics here are gettign absurd.
we have cops (because the legislature passes dumb laws) wasting time on really stupid stuff. and then we have this. cops going out and catching auto thieves, with no danger to the public (pursuits etc.)
i’m all for it
and i’ll make it as clear as possible. people are defined by their acts. if you take a car without lawful authority, you are a thief. i don’t care WHO presented the opportunity- sally soccer mom, or officer friendly.
August 10, 2010, 5:58 amwhit says:
for the 100th times. criminals, and especially thieves ARE opportunists.
people keep setting up this false dichotomy… “well, they might just be opportunists who just happened to notice the keys in the ignition and probably never would have done such a thing if those meanie cops didn’t set it up for them to …” OR “they are actually thieves” as if those are mutually exclusive.
complete and total crap.
how many car thieves, burglars and prowlers have you interrogated? i’ve interrogated scores of them.
they look for EASY MARKS. they don’t want to get caught, they don’t want to get shot (which is why they don’t do burgs when people are home), and they want the best reward for the least effort…
criminals LOOK for opportunities
most law abiding citizens don’t notice when people leave their keys in the ignition. here’s a question. when you walk down the sidewalk do you look into cars to see if they left keys in the ignition or valuable stuff inside?
most HONEST people do not. most thieves DO.
this is the kind of thing a smart cop looks for btw. but if i’m standing there in uniform, and he sees me, he aint doin’ the crime. but at least he knows i see him looking in the cars. these are the kind of people we do terry stops on. most average people would never notice this because they don’t recognize tell tale signs of a thief.
thieves scan parking lots and look for cars that are unlocked and/or have valuable stuff in it and/or have their keys in the ignition.
we have a rash of car thefts EVERY YEAR when we get our first cold snap because the criminals KNOW people will be warming up their cars in driveways and it makes an easy theft.
one year they had a van and managed to get a 1/2 dozen in an hour.
ONE group of guys.
honest people do not take cars because they happen to have the keys in the ignition. very very few honest people would even NOTICE that in the first place
scumbag thieves DO
people are really starting to fulfill the stereotype of the ivory tower academic in this thread.
in the actual world – people (not just cops settting up bait cars) sometimes leave keys in a car, and even leave it running with the ignition on
in the actual world, many thieves take advantage of said opportunity.
in the actual world, NORMAL people aren’t going to steal a car merely because there are some keys in it
August 10, 2010, 6:05 amDavid M. Nieporent says:
I reiterate: the fact that thieves are opportunists does not mean that opportunists are thieves.
I don’t think you understand what the word “dichotomy” means. Nor are you reading what people are writing, because (as usual), despite claiming to be a libertarian who claims to disagree with all sorts of abstract things about the law, you always reflexively defend actual police behavior. And getting all hyper about it and yelling “absurd” doesn’t make your arguments any more convincing.
A crime that the police manufactured. That may never have happened if the police hadn’t set up the opportunity. That’s the point.
But we’re not talking about judging people. We’re talking about judging policing. (And that’s something you just can’t handle.)
But was he a criminal before the police manufactured the crime? That’s the key question. Because converting him from a potential criminal to an actual criminal is not a good thing.
But was he a “scumbag thief” before the police manufactured this crime? This is the real issue. If you don’t understand that, you don’t even understand the discussion, and are just knee-jerkedly defending cops because that’s what you do.
August 10, 2010, 6:36 amDavid M. Nieporent says:
Right, and I already specified in my first post that if that’s who the police actually nab with stings like this, then that’s a good thing. But those aren’t opportunists; those are people actively looking to commit a crime. Thus, they present a different issue entirely.
August 10, 2010, 6:43 amwhit says:
“I reiterate: the fact that thieves are opportunists does not mean that opportunists are thieves.”
i reiterate the fact. anybody who steals a car because there were keys in the ignition is a THIEF. and with that particular theft, an opportunist one at that.
“I don’t think you understand what the word “dichotomy” means. Nor are you reading what people are writing, because (as usual), despite claiming to be a libertarian who claims to disagree with all sorts of abstract things about the law, you always reflexively defend actual police behavior. And getting all hyper about it and yelling “absurd” doesn’t make your arguments any more convincing.”
and now you are simply a liar. i do not always defend police behavior. in fact, i frequently criticize it. so let’s add lying to your list of accomplishments (hint: i said that the cop who beat the girl in the cell should have been tried and convicted (he was tried. two hung juries), and i criticized cops for using tasers excessively and…)…
“A crime that the police manufactured. That may never have happened if the police hadn’t set up the opportunity. That’s the point.”
the police manufactured NOTHING. no more than sally soccer mom MANUFACTURED an auto theft by leaving the keys in her car, or sally hockey mom manufactured a rape by walking down a deserted street at night or…
“But we’re not talking about judging people. We’re talking about judging policing. (And that’s something you just can’t handle.)”
more lies. i am a fierce critic of the over swatification of police, the war on drugs, overuse of tasers, the jailhouse beating, etc. etc.
well, i guess since you have no argument you might as well attack me by lying.
“But was he a criminal before the police manufactured the crime? That’s the key question. Because converting him from a potential criminal to an actual criminal is not a good thing.”
using the word “manufactured” is what we call begging the question. if the cops MANUFACTURED the crime, i would be against it and we would agree. leaving the keys in the ignition manufactured nothing.
“But was he a “scumbag thief” before the police manufactured this crime? This is the real issue. If you don’t understand that, you don’t even understand the discussion, and are just knee-jerkedly defending cops because that’s what you do.”
again with your lying. as noted above, i frequently criticize the police. but not here.
i could devolve to your level and start attacking you, or even lie about you. i’d rather take the high road.
but for the record… let it be noted that not only did you attack me, but you did so with lies.
repeatedly
hth
August 10, 2010, 6:51 amwhit says:
an opportunist thief is still an opportunist
if you will steal a car merely because the keys are in the ignition you are a thief.
and if the police nab you for it, that’s a win for society and a loss for the scumbag thief.
i don’t care WHO left the keys in the ignition. thieves are defined by their actions. if you steal a car you’re a thief. – regardless of who left them keys in the car.
August 10, 2010, 7:03 amDavid M. Nieporent says:
No, you do not frequently criticize it. You frequently criticize politicians for their law enforcement priorities — but you defend police for implementing those priorities. As for tasers, you in fact always defend their use here. Not to go all JBG, but see, e.g., this thread. Or this one. Or this one. Or this one. (I could keep going.) Sure, there’s a stray comment here and there where you argue that tasers might be used more by out-of-shape cops or cops with poor verbal skills, but you always manage to argue that the specific use of the taser was justified.
Would the black 1980 Chevrolet Monte Carlo in question have been stolen if police hadn’t staged their little sting operation? Obviously not. Manufactured. Would Tray Edward Watson have stolen a different car if that car hadn’t been there? It’s possible, but there doesn’t appear to be any evidence of that. (Since the judge actually did give an entrapment instruction at the first trial and some jurors bought it, I assume he had no actual criminal record of car theft.) In other words, manufactured.
But the cops did manufacture the crime, and you’re not against it, and we don’t agree. (We apparently agree that nothing in the fact pattern meets the definition of entrapment, but that isn’t the assessment I am making. I am not saying that they turned an otherwise-law-abiding person into a criminal; I’m saying that they turned a potential criminal into a criminal.)
Are you claiming that Tray Edward Watson would have stolen a car that day if the police hadn’t deliberately set up the opportunity? If not, then one more crime was committed on March n, 1997 than would have been committed if not for the police.
(And, let’s not be modest: the police didn’t just “leave the keys in the ignition.” The police went out of their way to ‘publicize’ the fact that the opportunity was there, with lights and sirens and everything to attract people’s attention.)
August 10, 2010, 7:25 amwhit says:
“No, you do not frequently criticize it. You frequently criticize politicians for their law enforcement priorities — but you defend police for implementing those priorities. As for tasers, you in fact always defend their use here. Not to go all JBG, but see, e.g., this thread. Or this one. Or this one. Or this one. (I could keep going.) Sure, there’s a stray comment here and there where you argue that tasers might be used more by out-of-shape cops or cops with poor verbal skills, but you always manage to argue that the specific use of the taser was justified.”
yes, i DO frequently criticize them. if you want to continue to lie, that’s fine with me. you only demean yourself. i gave you examples. you choose to ignore them. it’s intellectually dishonest.
as for the WOD, which i assume you are referencing with your claim that i defend the police for “implementing”. i believe in the rule of law. try it some time. i don’t have a choice, nor do cops in general. we are executive branch. not legislative branch. yes, as a beat cop i have some discretion, but i can’t ignore a gram of cocaine. you, as usual, blame the cops for what spineless dems and repubs have imposed on society.
do you really want a society where appointed law enforcement officers selectively ignore what congress (local and federal) have declared a priority? it’s kind of ironic that you have no problem with police abusing their power, which is what they would be doing by choosing to ignore duly passed laws, just because you (and I) happen to think those laws are moronic.
but it’s the kind of situational ethics i see oh too frequently. it’s the POLICE’s fault that legislators have criminalized mj.
the same people (such as you) who see it as an abuse of police power to use lawful means (and nobody claims this decoy wasn’t lawful) to catch auto thieves don’t have a problem with police abusing their power by selectively choosing not to implement duly passed laws merely because you happen to disagree with them.
would you be ok with cops not enforcing hate crime laws? i personally am against them, just like the WOD, but i don’t get to choose what laws get passed.
and again, you are a liar. i do not always defend the cops. i agree with radley balko on the over swatification of american police. i said outright that the jail cell cop beating should have resulted in criminal charges and a conviction, etc.
but god forbid you will admit you are wrong.
“Would the black 1980 Chevrolet Monte Carlo in question have been stolen if police hadn’t staged their little sting operation? Obviously not. Manufactured. Would Tray Edward Watson have stolen a different car if that car hadn’t been there? It’s possible, but there doesn’t appear to be any evidence of that. (Since the judge actually did give an entrapment instruction at the first trial and some jurors bought it, I assume he had no actual criminal record of car theft.) In other words, manufactured”
you can keep repeating a lie. it doesn’t make it the truth.
did sally jane soccer mom, whose report i took on her stolen car (ran into subway) MANUFACTURE a crime?
the cops manufactured nothing. they created an OPPORTUNITY for a crime, one that is a common occurrence on the streets of america.
metric assloads of people would walk by that car and not steal it. ONLY a criminal would.
it is simply not manufacturing anything.
“But the cops did manufacture the crime, and you’re not against it, and we don’t agree. (We apparently agree that nothing in the fact pattern meets the definition of entrapment, but that isn’t the assessment I am making. I am not saying that they turned an otherwise-law-abiding person into a criminal; I’m saying that they turned a potential criminal into a criminal.)”
and i am saying that you are wrong. they manufactured nothing. a car with keys in the ignition is just that. it is somebody else’s property and nobody but a scumbag thief thinks “oh, the keys are in the ignition. i’ll take it”
the thief and ONLY the thief manufactured the crime
A”re you claiming that Tray Edward Watson would have stolen a car that day if the police hadn’t deliberately set up the opportunity? If not, then one more crime was committed on March n, 1997 than would have been committed if not for the police.”
that is not the same thing as saying they manufactured it and you darn well know it. creating an opportunity for a crime to occur and setting up the cops to witness it is not manufacturing anything. the thief manufactured it.
“(And, let’s not be modest: the police didn’t just “leave the keys in the ignition.” The police went out of their way to ‘publicize’ the fact that the opportunity was there, with lights and sirens and everything to attract people’s attention.)”
good. because it changes nothing. nobody but a thief would take advantage of that opportunity
did they create the opportinity ? absolutely.
did they manufacture the crime? absolutely not
and it’s sad of me to realize you wouldn’t retract your lies, but i guess that’s what i should expect on the internet. i’ve been here long enough to realize people seldom do, when called on that type of thing
August 10, 2010, 7:39 amCatoRenasci says:
whit and David M Nieporent’s discussion, in which they are essentially talking past one another, illustrates how profoundly confused thinking about entrapment remains after almost 70 years of it being available as a federal defense, and the hundred and forty-three years since Massachusetts first adopted a version of the defense in Commonwealth v. Graves, 97 Mass. 114 (1867). It may also be a reason that the defense is unique to American criminal law – unless things have changed fairly recently, it is not available in England, Canada or the other Commonwealth countries, or in France or Germany (which one might reasonably take as representative of civil law countries).
One of the most troubling aspects of the ‘subjective’ test is that you’re focused on a person’s character generally, rather than what the person’s intention was in the particular circumstance – under the subjective test, if the accused is determined to be ‘predisposed‘ almost any lengths the police go to are acceptable and the defense is not available.
Even beginning with Sorrells, but especially as articulated by Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380 (1958) (Frankfurter, J. concurring), criticism of the subjective test on something like those grounds, and concern with police abuse, led many to prefer the ‘hypothetical person’ or ‘objective’ test.
And we seem no further along in our understanding than we were over 50 years ago. The fact is, both tests are badly wanting – the subjective test because you can have a person who is found to be predisposed, but who did not have the specific criminal intent to commit a particular crime until the police did their thing. In our law (other than for strict liability crimes), specific intent is required to meet the mens rea requirement for conviction. Hence, profound dissatisfaction with the subjective test.
The problems with the hypothetical person or objective test include its susceptibility to gaming by clever criminals (requiring excessive inducements from suspected police agents) and can lead to conviction of the unwary innocent at the hands of a jury (in many places, juries determine the issue of entrapment, not a judge) who rather self-righteously decide the inducements the police used wouldn’t have tempted them and so would not tempt an honest person. Very hard on minorities and subcultures, or the merely unpopular.
As I mentioned in a previous post, this results from confused thinking about the role of causation in the entrapment situation, and the conflation of predisposition with intention. The philosopher Joel Feinburg wrote about the problem of causation in an interesting and provocative essay Causing Voluntary Actions, in Doing and Deserving 152 (1970).
I commend Feinberg’s essay to both of you (and others) and would also suggest that the earlier referenced Comment: Causation and Intention in the Entrapment Defense, 28 UCLA Law Review 859 is worth the trouble to find and the time to read. Whether you ultimately agree or disagree, it will help you think through the issues on a deeper level.
August 10, 2010, 7:53 amerp says:
To what end was this sting operation staged? They got somebody to take the bait and drive away with an apparently abandoned car. How is that different from somebody picking up a $20 bill from the sidewalk? What a waste of resources. Getting real law breakers off the streets would be a far better use of the police time and tax payer funds.
August 10, 2010, 8:14 amlargo says:
Was the car in a safe place? If I saw the driver being “arrested” and the cops abandoning the car in a dangerous spot (or for any reason, observing the driver abandoning the car with doubts regarding his or her willingness), I might move the car to a safer spot. Especially if it presented a traffic hazard.
Or if it was in a place where it was likely to be vandalized. Or if it were in a tow away-zone. At least relocating it some short distance before calling the police would have seemed warranted to me in some circumstances. Rare circumstances, but not vanishingly rare I would have thought.
But now — yikes! I guess it is better to leave abandoned property in the exact circumstances in which it was found, regardless or safety, or of potential cost or inconvenience to the owner. At least with autos.
I hope, if anybody (1) found my car to be clearly abandoned (and seeing me being taken away by police or ambulance would suffice), and (2) noticed that I left my keys in the ignition, or a laptop on the seat, driven off by police or ambulance should suffice), that this someone would would try the doors and, if unlocked, would retrieve any key, and lock the vehicle for me, before driving off to the nearest phone booth (or even walking across the street to the corner shop) to call the police.
And if it was abandoned in a limited parking zone, or in an unsavory neighborhood, I would surely appreciate any neighbor who removed my car to a safer place, their own driveway or wherever, if doing this would aid its safe return.
The circumstances of the sting under discussion may have not called for any such thing from a good neighbor. But the discussion so far makes pause!
August 10, 2010, 8:18 amNo Comment says:
You all (and the California judges) are a heck of a lot more well off and well educated than the guy who stole the bait car and the people who live in the neighborhood from where the car was stolen. Most of you are probably whiter, too. As such, none of you have the slightest clue as to what a normal law abiding person in that neighborhood would do at the margin of taking illegal, but easy, money.
Furthermore, the person who stole the car may well have believed that either the police were going to steal the car (on false pretenses) or someone else would before the owner got back. You may not believe that, but, then again, you don’t live in that neighborhood or anywhere like it.
How would you feel if the police ran a sting through your tax preparer’s office — and put equivalent temptation in your path and in the paths of your friends and co-workers?
The legal standard for entrapment is fine. The problem is that high and mighty middle class folk have no clue as to what is reasonable or unreasonable for people who do not share their favorable circumstances — and they don’t seem to get that.
August 10, 2010, 10:23 ampete the elder says:
$20 bills are fungible. They don’t have license plates and government registration that make it very easy to identify who they belong to. If it is clear who it belongs to (you see someone drop it) most people would have a big problem with not returning it, just like most people have a problem with people not returning $20 bills found in wallets with IDs.
It is pretty disturbing that so many people here are acting like it is a perfectly normal activity to drive off in a stranger’s car without their permission. That the normally law abiding are only one slight temptation away from recreating a scene from Grand Theft Auto.
I was the victim of a similar crime. One day while I was at work, I had a relative leave my garrage door open while he ran to the store for a couple of minutes and someone tried to steal my lawnmower. Thankfully my neighbor saw the guy drive up and walk into my garage and my neighbor chased him off and called the police, who although they probably made a good effort and showed up in less than 5 minutes, never caught him.
August 10, 2010, 10:27 amAultimer says:
I gather you can’t accept the possibility that the bait car could induce an person to steal, who would otherwise never commit a victimizing crime.
I hope you’ll testify at the trial of the Philly cop who helped himself to the cash in open safe found when “securing” the unlocked door of a bar after closing time in the vicinity of a call.
August 10, 2010, 10:38 amberck says:
If you’d like a great story of bait car abuse, listen to the first act of this This American Life episode:
http://www.thisamericanlife.org/radio-archives/episode/394/bait-and-switch
A couple *calls the cops* to report that there’s car with the keys in the ignition parked outside their house. Cops say they can’t do anything about it. Weeks go by, the car is still there. Finally, the couple open the car and start rummaging around to see if they can determine the owner. Couple is then arrested for attempted burglary.
August 10, 2010, 10:49 amhattio says:
Whit says;
You realize there are differences of opinion. And *gasp* that reasonable people can disagree with you. I know, strange concept.
Whit also says;
This seems to be the crux of the difference. So, I have to ask where your evidence for this is. And no, by evidence I don’t mean I’ve participated in these and every person I ever saw was a scumbag. Because you’ve made your position very clear, if the person takes the car, you assume they are a career criminal, not a normally law abiding person who was over-whelmed. Or hell, even a career criminal who really wanted to turn their life around, but couldn’t overcome the temptation.
August 10, 2010, 12:12 pmOrenWithAnE says:
Thanks for the answer whit.
My general impression had been the opposite — that most crimes are committed by a small percentage of ‘career’ criminals rather than merely opportunistic lawbreakers. That is, by people that go out looking for targets instead of merely taking targets that happened to be in front of them.
August 10, 2010, 12:50 pmDavid M. Nieporent says:
I don’t know if you’re using the term “abandoned” colloquially or legally; if the latter, you’re certainly wrong; it wasn’t abandoned property. If the former, well, I find it hard to believe that anybody would consider a car “abandoned” because it was parked somewhere for a few hours.
As a legal matter, it isn’t; that’s not allowed either. As a practical matter, the difference is that there’s no way to determine the actual owner of a $20 bill.
August 10, 2010, 1:08 pmpete the elder says:
I don’t think those are exclusive positions and that it is a small portion of the population that commits the crimes, but only does so when presented with the opportunity. Most people convicted of violent felonies have previous convictions for instance. This is an older study, but 70% of convicted violent felons had prior arrests and 56% had previous convictions.
August 10, 2010, 1:17 pmDan Weber says:
A few years ago, this was happening a fair amount in NYC. Cops would leave wallets on the ground and bust people who picked them up.
Walking through Boston around midnight about ten years ago, near Downtown Crossing I saw a suitcase on the sidewalk. Standing on edge like someone left it there.
I looked around, wondering what was up. I thought I could help return it to its owner before someone stole it.
But something just struck me as wrong. Too many things could go wrong if I even touched it. So I turned around and walked away.
On bait cars:
Generally I’m all for them. But NPR had a segment a few months ago on “This American Life” about a guy who had a bait car parked in front of his house. He called the cops and they ignored him. Figuring he was on his own, he went into the car to investigate, but never started it. Then the cops came for him, repeatedly.
Radley Balko probably covered it, too — this stuff is right up his alley.
Also: isn’t taking a car for a joyride separate from auto theft, where you intend to keep the car?
August 10, 2010, 1:17 pmUrso says:
An interesting question is to what extent TV and the movies color people’s experience of what criminals are really like. People watch Ocean’s 13 and assume criminals are masterminds with elaborate schemes and Bond-like gadgets; people watch CSI and assume cops can unravel an entire string of crimes from a single string of nylon. Because this guy doesn’t fit into the “criminal mastermind” mold, commentors argue he’s not a “real criminal” but a “mere opportunist.”
As for the “This American Life” story that’s a whole nother issue. I think the cops absolutely have a moral duty to tell those people it was a sting car if they call it in to report it. At that point it becomes clear they are neither criminals nor “opportunists.”
August 10, 2010, 1:32 pmpete the elder says:
I would think shows like Cops would have more influence. No one who watches even one or two episodes is going to think the average criminal is a genius.
August 10, 2010, 1:35 pmSeaDrive says:
What about the long term effect on community relationships with the police? There are neighborhoods where residents actively frustrate the police by, e.g., picking up shell casings after a shooting. Why would do that?
Well, if the guy who stole the bait car has a sister, is she going to be a friend of the cops? Multiply one incident by ten thousand.
August 10, 2010, 1:38 pmDavid M. Nieporent says:
Perhaps. But the distinction some of us — well, me — are trying to draw is not between smart and dumb or the like, but between someone out to commit a crime and someone who does it because the opportunity happens to fall into his lap. There are people who steal cars for a “living.” It makes sense to target them with bait. But there are others who don’t look into every car they pass to see if keys are in the ignition, but who may steal a car when you post a big neon sign over it saying, “Please steal me” as the police did here.
August 10, 2010, 1:43 pmpete the elder says:
And what about the neighbor who had his car stolen once. Do you think these neighbors appreciate when the police arrest people like this? There are a lot of honest poor people in these neighborhoods who are frustrated that the police don’t make much effort to arrest the thieves that victimize them.
And we do know the guy at least has a neice, since she is the one who called to let him know there was a car available for him to steal.
August 10, 2010, 1:54 pmNo Comment says:
And what about the neighbor who had his car stolen once. Do you think these neighbors appreciate when the police arrest people like this? There are a lot of honest poor people in these neighborhoods who are frustrated that the police don’t make much effort to arrest the thieves that victimize them.</i?
What they ought to do is give the case to the jury with the proviso that all the jurors come from a neighborhood economically and demographically similar to the one where the car was stolen from. IOW, the jurors should be picked so that they understand what a "reasonable" person in the community would be expected to do or not do. That jury might still convct (or maybe not), but the law would get a much more realistic application of its own supposed legal standard of entrapment than by having some wealthy judges decide this or a jury full of middle class VCers decide this. If enough people in the neighborhood are as sick of car stealing as you think then the thief is still convicted — but this is hardly a foregone conclusion — they may be much more likely to think that anyone who leaves keys in an unlocked car deserves it gone as a deterrent to others who might otherwise make the fool move of leaving their keys in their unlocked car. Or they might simply think that the prison term is more destructive to the fabric of their community than this particular “theft” was.
August 10, 2010, 2:15 pmhattio says:
Whit says;
And here I think is where people are disagreeing with you. You seem to assume that if someone takes the bait car, they would take any other car they see with keys in it. But in reality people often act in specific ways at specific times that they wouldn’t normally do. Violent crimes are the best examples of this, the guy who’s never been in a fight, but takes a baseball bat to the guy he finds sleeping with his wife. Nevertheless, I find it hard to believe the general rule (that people will occasionally commit actions they wouldn’t normally do) doesn’t also apply to property crimes.
FWIW, I agree with you that this is not entrapment, and there’s nothing wrong with the police action. I just disagree with you that there is some bright moral (not legal) line between entrapment and general stings that are not directed at a particular criminal. Not that I think we should outlaw them. But when the people in charge of setting up and implementing the stings don’t see the issues, that’s makes me more leery.
August 10, 2010, 2:17 pmLarvell Blanks says:
This calls out for an article by Fox Butterfield.
August 10, 2010, 2:45 pmwhit says:
this goes doubly true when you realize that pretty much every person prominently displayed in cops SIGNED A WAIVER.
cops rode with me several times, and until then i had never realized that as an entertainment show (not a news show) they had to get waivers.
i had a really sweet incident where a guy tried to light his house on fire and then threw a butcher’s knife at me… but wouldn’t sign the waiver. :(
August 10, 2010, 3:31 pmwhit says:
no, i don’t accept that “possibility” because as i explained – in the real world (apart from bait cars) the average person will come across numerous cars either with the ignition running and left unattended and/or with the keys in the ignition
again, the average thief is much more likely to notice the former than the average person because they LOOK for opportunity. chance favoring the prepared mind and all that.
as for the cop thief, why would i possibly want to testify. i have nothing to add except that he is a disgrace to his badge and his fellow officers. i abhor corrupt cops. i applaud good cops. the cops in this decoy case are the latter (at least as judged by this decoy incident) not the former.
despite the lies of a certain poster here, i am a fierce critic of bad cops and a fan of radley balko fwiw who helps expose serious problems with modern policing
i defend em when they do right, and criticize them when they do wrong
August 10, 2010, 3:35 pmOrenWithAnE says:
No, that’s not why. The question is “had the bait car not been there, would he have completed the rest of the week without committing a crime”?
August 10, 2010, 3:36 pmwhit says:
plenty of people aren’t disagreeing with me, and i would suggest that outside the rarefied climate of a lawyers blog, the VAST majority of average citizens would agree with me, fwiw.
everytime i have heard of the cops running stolen car decoy stings, the public has been supportive.
i have far far far far more sympathy for the above example, the crime of passion that you mentioned. i have a lot of empathy for otherwise good people who snap. and it’s good that the law recognizes such “outs” as temporary insanity and diminished capacity.
thieves, especially ime car thieves, i have little to no sympathy for.
August 10, 2010, 3:38 pmwhit says:
based on my experience with ACTUAL crime victims, and especially in poor neighborhoods, they have far far far less sympathy towards car thieves etc. than i do, and certainly than the thief-apologists here.
the average guy who catches somebody stealing his car, the car he works his butt off to afford, and that he uses for transportation to get to his job so he can feed his family HATES a thief. HATES him. the thief would be far better off caught by us, then caught by the average denizen of “the hood” and i say this as somebody who has lived in said hood for a portion of my life, and worked there for many years as well.
August 10, 2010, 3:41 pmwhit says:
most career criminals, and especially the ones we usually catch ARE opportunistic lawbreakers.
they are not, as mentioned elsewhere in this thread – ocean’s 13 type masterminds. they are people out there scamming and looking for stuff to steal every friggin’ day. and they preferentially go for easy marks. many prolific auto thieves specialize in auto theft, and can hotwire many models of car (usually older hondas, toyotas), etc. in a matter of seconds. fwiw, i have been taught the techniques of hotwiring by them.
but many criminals are just looking for opp’s. if they see one they pounce on it, but they don’t necessariuly go out at 1400 hrs to specifically look to commit crimes. they are ALWAYS looking to commit crimes and just wait for the opportunity to present itself.
and again, all that aside, anybody who would take a car merely because it has the keys in the ignition is a thief and deserves to get popped. whether they are career thief, or just some guy who said “neat. i’ll steal this” and never stole before in his life (which is EXCEPTIONALLY unlikely, but possible) still deserves to get prosecuted for stealing a bait car.
August 10, 2010, 3:45 pmwhit says:
it is certainly true, just to be clear here, that a small %age of people commit most crimes.
we are all familiar with the effect of putting just ONE bad guy away and the radio for that district goes nearly silent. pratically all the auto thefts, prowls, etc. were done by ONE guy.
we call them “frequent flyers”
but it is also true that a fair %age of thiefs are just opportunists. they may go significant periods of time between thefts (unless they are addicts in need of a fix), but when they see an easy opp they will ALWAYS take it.
but generally speaking, whenever i arrest a guy for prowl or whatever, he almost always has numerous arrests for same. and let’s consider that for every arrest (time he is caught) he’s probably done at least a dozen without being detected ime.
it’s similar to DUI. the average DUI driver we apprehend has driven DUI about 60-80 times in the previos year, at least according to NHTSA.
August 10, 2010, 3:49 pmRich Rostrom says:
rilkefan: none of whom would have committed the crime in question without the sting (which e.g. intentionally made the bait more tempting than the average stolen car), and will as a consequence not be able to support his family and otherwise play a useful role in society but will instead be a burden on it.
I guess you didn’t read the description of the facts.
This wasn’t an otherwise law-abiding family man whose moral sense was overwhelmed by the irresistable temptation laid in his path by nefarious police.
The police left the car and keys where it could be observed. A would-be accomplice in the attempted theft observed and informed him of it; he came to the location with the established intent of stealing the car.
The thief’s niece regarded an apparently unattended car with keys as a desirable target for theft, and thought (correctly) that he did too.
In other words, this man was a committed thief. As whit (and other police officers) have noted, there are many such thieves on the lookout for such opportunities. It is highly unlikely that this bait would be taken by an otherwise law-abiding person, before any of the local predators pounced on it.
But let us adopt your premise: the person caught by the sting would not have committed this theft if the police had not set up this bait. We still know that the person in question would steal a car whenever he had a similar genuine opportunity – and other such opportunites exist. As long as he was at large, he was a danger to the community – a “walking timebomb”. By catching him with the sting, the police prevented him from stealing the car of a citizen, who might suffer serious economic losses thereby. And since he probably would not be caught after that first theft, others would follow, with additional damages to innocent citizens.
These crimes and damages were prevented because the man took the bait car instead.
Is this not a public good?
August 10, 2010, 4:01 pmNo Comment says:
based on my experience with ACTUAL crime victims, and especially in poor neighborhoods, they have far far far less sympathy towards car thieves etc. than i do, and certainly than the thief-apologists here.
Like I said — stack the jury with people from that neighborhood (and ones like it) by mandate and see whether they think a reasonable law abiding person in that neighborhood would have been tempted or not. You are trying to tell me what THOSE PARTICULAR PEOPLE think and how they think and how they feel ultimately about a somewhat nuanced ethical situation. Even if they don’t like their cars stolen, they still may not like bait cars. The judges on the CA Court (even Judge Mosk) are engaging in the same type of prideful presumption. So is Professor Volokh. But the point is that you are not those people and have no clue, really — not at this margin of ethics and policy. It doesn’t mean that you are wrong about how they feel (maybe you are and maybe you aren’t). It just means that they should be the deciders here and not you.
BTW, there is a reason those people stroke you and tell you what they think you want to here. It is so you don’t jack them up later, so you don’t pick them out for an embarrassing Terry stop or DWB stop later. So they tell the policeman what the policeman wants to hear. Don’t get that confused with knowing what they really think. Don’t presume to know what they think. I don’t.
August 10, 2010, 4:03 pmpete the elder says:
So not only are the poor people more likely to be ok with car theft, we should also assume that they are lying when they say they get mad when their stuff is stolen.
August 10, 2010, 4:17 pmwhit says:
you have no idea what you are talking about. i worked deep undercover a long time. i heard these opinions about thieves etc. from people who thought i was a dope dealer/user NOT a cop. i’ve blogged about this numerous times. so, that makes your premise absurd. my experience as a cop (while not working undercover) has only reconfirmed what i learned undercover, hanging out with criminals, who thought i was a criminal (at least as far as using/selling dope is concerned). nobody likes a thief.
sorry, fail.
August 10, 2010, 4:19 pmNo Comment says:
People told their local drug dealer / drug buyer, acting in the role of confidante, how much they looooove police sting operations!?!?!? You will just say anything, won’t you, Whit? We were all born yesterday, weren’t we? We are the sheep and you, the sheepdog.
The fact that you are opposing someone who’s position is that people in the ghetto should be the ones to decide what the reasonable man who lives in the ghetto would do belies your position and reveals the lack of courage in your convictions on this issue. If you really thought that people in the ghetto think the way you think then you would have no problem with what I am proposing on this thread. But you don’t so you do.
August 10, 2010, 4:36 pmwhit says:
clearly, you are more interested in arguing than in actually discussing stuff.
that gets boring.
August 10, 2010, 4:59 pmwhit says:
the cognitive dissonance is truly amaszing, isn’t it?
poor people love & respect auto thieves. i am sure it’s true. they never call police to report when their cars get stolen. they just write it off and move on. they also love when scumbag thieves break into their apartments and steal the christmas presents they just bought for their kids with their hard earned dollars. i see that all the time
you see, poor people are different from you and i. to them, auto thieves are the robin hoods of their community, fighting the power, and pushing back at THE MAN(tm) who ceases to subjugate the teeming hordes by entrapping them into stealing cars.
i am sure it’s true. no comment has convinced me with his big brain
August 10, 2010, 5:13 pmDavid M. Nieporent says:
Right; that’s why we all (except perhaps “No comment”) agree that entrapment fails as a defense. That’s not the point. Nobody is arguing that Tray Watson is a good guy. The issue is the value of this sting.
That depends. How likely is it that this person would have stolen another car at some other point in time? That’s an empirical question that can’t be handwaved, and the answer is simply not “He’s a scumbag criminal, so he definitely would have.” Was Tray Watson the sort of person always looking for cars to steal, such that if it wasn’t the bait car it would have been a real person’s car the next block over later that afternoon? Or was this a relatively unique situation, in which the police presented him an opportunity which was (seemingly) too good to be true, and so he jumped on it? (While other opportunities certainly do exist — people do leave their keys in their cars — are they all “similar” to this one, in which the thief had reason to believe that the car wouldn’t be missed for some time if he took it, since the owner had been hauled off to jail?)
While the police were expending all these man-hours on this sting to catch this one guy who had stolen only a bait car, how many real citizens’ cars were being stolen?
August 10, 2010, 5:22 pmrilkefan says:
How do you know? Or how do you know that the niece (who is now I imagine also a felon) is a hardened criminal? If as whit would have it no such car will stay on the street without a career thief snapping it up, the police wouldn’t have needed to stage the bit of drama used to advertise the car. Maybe in fact both of them are habitual offenders, but the point still stands that police work shouldn’t be judged simply on total convictions.
Incidentally, would everyone feel the same way if we were talking about some private school kids in a wealthy suburb where one texted another that some lawyer’s Porsche is sitting in a secluded spot near the mall with the keys in it after he was arrested? If so, is this something the police should do, or do more often? Should they leave some cocaine in a bag on the passenger seat, maybe a loaded gun in the glove compartment? Have you thought about ways the authorities could attract the criminals or would-be criminals among your colleagues and social circle with suitable stings and passed on the ideas?
August 10, 2010, 5:27 pmsomebody says:
This looks like good police work to me, and police in my area put bait cars in good areas as well as bad ones, because good areas are frequently victimized by thieves looking for nice cars. Rash of thefts in the morning where gangs would go in the front/side door (as appropriate) and grab keys off the hangar/credenza/etc. They were exporting Range Rovers to interesting parts of Africa and Eastern Europe.
The lucky bag stings seem more problematic (though if they only arrested the people who took cash, then not so problematic). The police shouldn’t be asking people to engage in criminal activity, such as having attractive women officers asking someone in a bar to score them drugs. An inebriated single man would be under substantial duress to engage in criminal activity he never would have done but for the police action. Undercover buys is different – you’re getting someone who is engaged in criminal activity vs creating criminal actions with sex as an inducement.
August 10, 2010, 5:29 pmwhit says:
“Right; that’s why we all (except perhaps “No comment”) agree that entrapment fails as a defense. That’s not the point. Nobody is arguing that Tray Watson is a good guy. The issue is the value of this sting.”
at a *minimum* this sting
1) took an auto thief off the streets AND actually resulted in enough evidence to get a conviction
2) without endangering innocents or risking that innocents get falsely accused
3) without a pursuit or other dangerous procedures
4) will have the added value of letting the criminals in the area know that the next “easy mark” they find may in fact be a police decoy.
that imo is an EXCELLENT use of police resources and certainly far more useful to society than merely being armed stenographers and taking reports after the fact.
“That depends. How likely is it that this person would have stolen another car at some other point in time? That’s an empirical question that can’t be handwaved, and the answer is simply not “He’s a scumbag criminal, so he definitely would have.” Was Tray Watson the sort of person always looking for cars to steal, such that if it wasn’t the bait car it would have been a real person’s car the next block over later that afternoon? Or was this a relatively unique situation, in which the police presented him an opportunity which was (seemingly) too good to be true, and so he jumped on it? (While other opportunities certainly do exist — people do leave their keys in their cars — are they all “similar” to this one, in which the thief had reason to believe that the car wouldn’t be missed for some time if he took it, since the owner had been hauled off to jail?)”
this falls under a how many angels can dance on the head of a pin, in terms of usefulness.
and of course in terms of usefulness, the fact that the cops broadcasted in a sense, the availability of this car meant that they were more likely to get a “quick bite” and thus spend less money while they sat there and waited for somebody to notice.
efficiency, i’m for it
and do you honestly believe that the circumstances of this case were such that this guy who had a relative call him and let him know about the car, and who then went over there and stole it, was not otherwise inclined to steal cars, if he hasn’t already stolen a bunch?
seriously?
does the fact that this guy’s niece CALLED HIM and let him know about the car being available at least suggest to you that maybe his niece knew what anybody with common sense knows – he was an auto thief?
would your niece call you and let you know about an abandoned car with the keys in the ignition? i would suggest that unless you were known to her as an auto thief, the answer is: no
August 10, 2010, 5:33 pmhattio says:
No Comment says;
I really HATE defending whit. But, he didn’t say that he was in the role of confidante or anything about what people in the hood think about police sting operations…just what they think about car thiefs. I think Whit is wrong…a LOT. And I think he makes assumptions about things he believes he understands when he doesn’t. But, you should call him on those things, not make up shit to call him on.
August 10, 2010, 5:36 pmwhit says:
the fact that the police staged the drama BROADCASTED to the community (and here’s a hint… car thieves live in communities) that this car was available.
that simply sped up the process. i have little doubt that at some point a thief would notice it. and it would certainly waste a lot of police resources if the police didn’t broadcast it, since they would likely have to wait longer until somebody noticed it.
efficiency. i;’m for it
for all i know , the defendant in this case graduated from choate, went on to harvard and currently holds a PhD in aeronautics.
WHO CARES?
as for the gun and cocaine thing, if they did THAT, then we would have reason to question them. except they didn’t.
if they left anthrax in the car and infected whoever stole it that would be bad too. but they didn’t do any of this hypothetical stuff.
you are doing everything short of playing the race card, instead playing on the class card (not that i bet you even know what the class of the defendant in THIS case is. you are assuming).
who CARES?
they set up a car with keys in the ignition and did a little theatre to let people know it was there, and a thief took advantage of it.
that’s the fact pattern
August 10, 2010, 5:42 pmwhit says:
thanks. i guess. the term “damning by faint praise” comes to mind here. but i’ll take it. i can’t recall anything that i said that wasn’t supported by evidence, and of course i have proven you wrong tons of times, but i haven’t catalogued these incidents, so we’ll let bygones be bygones. ;p
August 10, 2010, 5:43 pmwhit says:
absolutely true. and as somebody who worked undercover and bought tons of drugs and weapons and stuff we were intensely aware of this. as a male, i avoided buying from females, for one. because the same issues apply. and there are all sorts of things i could have done to make it “easier” to buy that would have been entrapment and/or unethical.
those are NEVER worth it. and none of those apply here.
for example,i would never have tried to buy drugs by portraying myself as a user going through withdrawals. whether or not that would rise to entrapment is a question for the finder of fact (i guess) but it’s WAY too close to be ethical, so we would never do that.
offering outrageous sums would also be entrapment. if coke is going for $100 a gram and i offer $500 that would be unethical.
etc.
i sometimes used women to introduce me to drug dealers, but we would never consider charging them as any sort of accomplice, and thus we could avoid any sort of sexual issue in that regards.
August 10, 2010, 5:50 pmpete the elder says:
Yes. I think private school kids should be arrested in that situation and would be fine with police using that as a bait car. Why would I not be ok with it?
I used to work for a private school and on multiple occasions I called the police to report what turned out to be students and former students who were on campus after hours and who were committing crimes. I can think of at least one occasion where the police arrested them and, unlike the example above, impounded their car.
August 10, 2010, 5:56 pmrilkefan says:
There’s no question about the arrest here. But re the tactic, e.g. if one had no reason to suspect those kids were committing crimes of the sort, or one could show that the deterrent effect was small wrt the sting effect (or couldn’t demonstrate the opposite). But the question was meant as a lead-in to the last question, have you suggested stings to be run in your milieu, or perhaps would you if you came across a likely idea?
It’s obviously not parallel, but I think I feel about this the way I feel about search-and-seizure restrictions, Miranda warnings, etc.
August 10, 2010, 6:07 pmwhit says:
here’s how it works…
cops have maps. they know where crime hotspots are. if a sting is for autotheft, they will choose a district that has a high rate of… wait for it… autotheft.
we are generally not going to target a specific demographic like prep school kids or redheads or people with a lisp.
if the cops had specific info that prep kids were stealing a bumnch of cars, there might be cause to target them specifically, but generally speaking we conduct stings where there is a high incidence of that type of criminal behavior. it’s a geographical thing, not a demographic thing.
August 10, 2010, 6:14 pmNo Comment says:
I really HATE defending whit. But, he didn’t say that he was in the role of confidante or anything about what people in the hood think about police sting operations…just what they think about car thiefs. I think Whit is wrong…a LOT. And I think he makes assumptions about things he believes he understands when he doesn’t. But, you should call him on those things, not make up shit to call him on.
But this thread isn’t about a thief stealing a poor person’s car. It is about someone who responded to a police sting operation. Yet Whit claims he knows how ghetto people would feel about the police sting that occurred (but not so much he would have them constitute the jury — taking the question out of the judges’ hands). Whit implies that people in the ghetto would not tend to distinguish the situation in this thread from a simple plain vanilla car theft by pointing out that people in the ghetto would want the thief locked up because they dislike plain vanilla car theft.
Who knows what Whit‘s problem is ultimately. Maybe he is not intellectually sophisticated enough to understand the difference between this sting and a plain vanilla car theft so he simply tunes out when people in the ghetto tried to speak to him, as a confidante, at this level of intellectual sophistication and nuance that was in his Mary-had-a-little-lamb zone. Or maybe Whit‘s problem is that while he sees the distinction, he is firmly convinced that people in the ghetto could never see a distinction between this police sting and a plain vanilla car theft because they are not smart enough to make a jurisprudential / moral distinction like that. Or maybe Whit just makes up whatever “experience” he needs to support his preconceived notions at any given time.
Ultimately, it doesn’t matter. He might be right in spite of his obvious presumptions. Let the ghetto jury decide and let the chips fall where they may.
August 10, 2010, 6:18 pmJohn Burgess says:
Are there any published stats on whether those taken in by ‘bait car’ stings are first-time auto thieves? Based solely on my occasional viewing of ‘Bait Car’ (TRU TV), it seems a goodly number have stolen cars before, but a fair number, too, seem to be youths finding a most excellent opportunity to show off to friends.
Once they turn the key in the ignition, though, they do become car thieves (or at least ‘joy riders’).
August 10, 2010, 6:21 pmKatahdin says:
(picking one of several similar comments) I’m not sure whether people are speaking hypothetically or addressing the specific facts of the case, but if the latter, from the OP:
“He told the arresting officer that his niece had informed him of the earlier apparent arrest and told him to “come and take” the car.”
I don’t think most honest-but-for-the-entrapping-police law abiding citizens would respond to a phone call by going over and taking the car, and moreover I doubt that most nieces of the apparently law abiding would make such a call. Why call your straight arrow uncle to let him know about an easy to steal car in the first place?
August 10, 2010, 6:25 pmwhit says:
yes, you got me. i am not intellectually sophisticated enough. i ph33r your big brain
i need to go back to school because clearly an undergrad degree in philosophy and grad school in counseling psychology and 20+ years interrogating suspects, living and working in the hood (at times) isn’t enough for me to understand the subtle “ghetto mindset”. it’s left me ill equipped to wrap my brain around such complex ideas. i defer to your advanced insight into “ghetto” psychology.
and of course these are all PREconceived notions. nope., 20+ years of dealing with crime and crime victims hasn’t given me insight into how people view crime and criminals. no, that’s just inconceivable
August 10, 2010, 6:25 pmpete the elder says:
Yes I have. I discovered several branch locations where I work where I am sure opportunistic employee theft is occuring (some of the thieves are probably about equal to me in authority and pay) and have discussed with my supervisor ways for determining which employees are stealing. Too many people are involved in handling inventory to narrow it down to less than a few dozen people or so, but I hope one day to catch them and am willing to use a sting if necessary. I have also discussed installing security cameras in some areas in our office for determining who has stolen from people desks and purses and would be willing to do a sting for that as well.
We have caught employee theft before. I hope someday we figure out who has been stealing and that they are fired and arrested for their crimes.
August 10, 2010, 6:25 pmNo Comment says:
. . . living and working in the hood . . .
Yes, you have a large economic incentive to think as you do and to say that others think as you do and to try to convince others to think as you do. The more discerning readers of this thread get that. It doesn’t bolster your cred.
August 10, 2010, 6:37 pmdepartment11 says:
This arrest took place in 1997 but nowadays what’s readily apparent, from reality shows like Bait Car in which the cops routinely use new Escalades and the like, is that the degree of enticement – enticiness? – is no longer a practical consideration.
August 10, 2010, 6:42 pmwhit says:
it’s just the Man ™ trying to keep you down. you keep on speakin’ truth to power, No Comment.
the more discerning readers have little sympathy for thieves and their apologists.
the cops are the good guys in this scenario and the defendant is just a thief who got caught.
thems the facts
August 10, 2010, 6:42 pmwhit says:
generally speaking, the cars cops choose as bait cars are
1) those readily available to them (we had to borrow ours)
2) those that are most commonly stolen
escalades are a hot ticket around here, fwiw
August 10, 2010, 6:44 pmNo Comment says:
it’s just the Man ™ trying to keep you down. you keep on speakin’ truth to power, No Comment.
By the way, if I was on the jury (and knowing only what I know from this thread), I would vote to convict, and not give the credit to the entrapment defense. I don’t think you are getting my point at all.
August 10, 2010, 7:10 pmwhit says:
i get your point, no comment. i just don’t think it’s valid.
fwiw, i never claimed you believe this is entrapment.
also, i have “economic incentive” to use your previous criticism of me to support the war on drugs. i don’t – because it’s bad policy. i support decoys because they are good policy. my economic incentive is irrelevant
August 10, 2010, 7:21 pmrilkefan says:
No, that’s different – that sounds like you’re just doing your job in reacting to known pilferage, assuming you use proportionate, effective methods to do the determination (as noted in the first comment above, I’m trying to separate stings which catch those actively looking to commit crimes from stings which increase crime).
I’m not being sufficiently clear. The idea was more on the order of suggesting the police let it be known at your local softball game (at which no one uses drugs as far as you’re aware, or maybe you have reason to know no one does) that drugs can be obtained by doing a, or that there would be a nice payment to anyone who could just transport a bag of weed to location b across town while the cops are watching the agent, or that tax preparer c is really good at getting a deduction for d which isn’t strictly legal but the IRS is known not to check – maybe with you as the agent. (Note: here “you” is meant in the sense “one”.)
August 10, 2010, 7:22 pmNo Comment says:
Your economic incentive is always relevant. When you have an opinion that goes counter to your incentive your cred goes up. When you have an opinion that aligns with your opinion, your cred goes way down. There is nothing you can do about this. Frankly, with your Unfrozen Caveman Lawyer level of analysis in this thread, conflating regular car theft with what happened here, your bias is showing extremely clearly.
August 10, 2010, 7:25 pmwhit says:
there is a difference between sophistication and sophistry. what you are doing is the latter, but you think it’s the former.
it is not “caveman” like to speak simple truths. and the truths ARE simple here.
fwiw, we spend far far far more on the WOD than the decoy war on auto thieves. it’s not even remotely close, so this economic incentive thing is absurd.
what happened here is simple to understand and yes it can be compared to “regular car theft”
a guy found out about an apparently abandoned car with its keys in the ignition after his niece called him to notify him of this. if this doesn’t scream THIS GUY IS A THIEF, it certainly strongly suggests it. why would his niece call him to inform him about it. i’ll let you use your keen intellect and big brain to figure that conundrum out.
he then went to the scene and … wait for it… stole the car. that’s what auto thieves do.
the cops didn’t stand there dressed in neglige and say “hey baby, don’t you wanna steal this car? it will make you a man, and i LOVE a real man”. they simply left it there with its keys in the ignition after making a display of arresting somebody out of it, so they could draw attention to it.
then, they let thieves do what thieves do.. steal
and a thief did
and he was caught.
and that’s a very good thing.
August 10, 2010, 7:35 pmNo Comment says:
there is a difference between sophistication and sophistry. what you are doing is the latter, but you think it’s the former.
No. What I am saying is that neither you, nor I, nor Eugene Volokh, nor Judge Stanley Mosk (but most especially not you) are in the best position to make the call as to whether it is sophistication or sophistry. What I am doing is called humility.
August 10, 2010, 7:43 pmNo Comment says:
Further general comment about this thread: if this sting situation had been real, shouldn’t the police be jointly liable through the loss of the car by leaving an unsecured car in a bad neighborhood. Isn’t that basically TRYING to get the arrestee’s car stolen? If the police in that neighborhood are apt to act so recklessly with respect to their arrestee’s property why would people get all moralistic about opportunistic theft? Frankly, the thief in this case probably thought the popo would have to make good on the car which means the “victim” would have gotten paid and the police would have learned a valuable lesson about not being dicks. There is an understandable argument (albeit one I don’t personally agree with) that this would have been a morally justifiable theft if things had been as they appeared.
August 10, 2010, 8:03 pmwhit says:
you can call it a ham sandwich if it makes you feel better
August 10, 2010, 8:03 pmpetetheelder says:
And the police here were reacting to known thefts. I would not have a problem with police doing any of those if they were reacting to a known criminal problem in the area. Police should not be doing stings if the crime being looked for is not a problem, ie trying to get people to use drugs for the first time in an area where they know no one uses drugs.
August 10, 2010, 9:19 pmOrenWithAnE says:
I still see no evidence that the man was a thief, as opposed to the man was a person that stole a car.
Or, in your parlance, I don’t see any evidence that he is a frequent-flyer. Which is the problem with such a silly sting (jeez, at least make the perp hotwire the car so you know he has real car-thieving skills) is that it does not discriminate between the sharks and the guppies.
August 10, 2010, 9:58 pmwhit says:
i will make this crystal clear. he is a thief because at LEAST in this case he stole a car. we have no way of knowing he never did so before, because even if he has a clean record it doesn’t mean he never stole a car before, it just means he never got caught OR he never stole a car before. we have no way of knowing. i would be interested in knowing what his criminal history is. i’d be willing to bet it’s far from clean. especially considering the whole niece-calling-him-thing, it seems he may have been the go-to guy for stealin’ cars.
as to the point in your second paragraph. let’s assume arguendo (and it’s a BIG assumption), that he never stole a car before in his life.
great
he’s still a thief.
because he stole this one. and if it’s anything like my state, for a first offense, he’;s likely to get a pretty darn weak sentence anyway
contrast with england, for example, where they take auto theft seriously.
if he is a frequent flyer then he should get a more serious punishment. and he will, if they take past convictions into account, which pretty much every jurisdiction does.
if it’s his first, well congratulations. he popped his cherry during a police sting. maybe he’ll rethink the benefits of a life of crime since we nipped him in the bud
either way, it’s a win as far as i am concerned.
August 10, 2010, 10:08 pmwhit says:
and to be more clear, i see no evidence in the ARTICLE that the man was a thief apart from
1) the fact that his niece apparently thinks he is and thus informed him of the car being there
2) that he then went to the location and stole the car.
i’d love to know what his criminal history is. i don’t
August 10, 2010, 10:19 pmReaderY says:
I agree with the concurrance, and I see no logical fallacy.
As the concurrence notes, the police are within their legal rights. The question is whether the policy is wise.
Under the concurrence’s view, there is a segment of the population who could, depending on their circumstances and environment, either live their lives as productive citizens or become criminals.
Social policies which enable members of this segment to spend their lives as productive citizens — which create an environment that tends to prevent crime — are clearly superior to policies which spring them into crime earlier. In the first case society has the value of their productive company and services; in the second case, it does not.
By way of analogy, imagine two fire departments which both seek out building that violate the fire code. One burns them down now, empty, least the code violations lead to future fires with the buildings occupied. The other fixes them without taking them out of service.
Both policies unquestionably prevent deaths from fire. The question is, which one does so at the least cost to society? It is in no way a logical fallacy to argue that the second policy is superior to the first.
August 11, 2010, 12:24 amDavid Schwartz says:
Except in this case, if the guy’s a first time offender, there’s a chance for him to learn all the right lessons. Crime doesn’t pay. That perfect opportunity to break the law may get you in trouble. And so on.
August 11, 2010, 3:11 amNo Comment says:
Except in this case, if the guy’s a first time offender, there’s a chance for him to learn all the right lessons. Crime doesn’t pay. That perfect opportunity to break the law may get you in trouble. And so on.
Or he might be raped in prison, become enraged by this violation and understandably decide to hurt as many people as he can when he gets out. I mean, let’s keep it real.
August 11, 2010, 5:44 amohwilleke says:
Car theft generally has a very high recidivism rate. So, the opening the door to one theft to prevent future ones argument certainly has merit.
The problem with the decoy approach in this case is the notion that car thieves might not be uniformly bad. Some might be opportunists who act only when all the stars are aligned, there are almost no barriers to committing the crime, and the apparent likelihood of being caught is apparently almost zero. These individuals would respond to the decoy but be among the least likely to commit a large share of car thefts, and an would probably commit an even smaller percentage of car thefts where the car owners had made any effort to protect themselves.
In contrast, the hard core repeat car thieves who account for the vast majority of car thefts and almost all hard to prevent car theft, who are the source of the high average recidivism of car theft, might very well smell a rat in this situation. Even if they do not, they might be beaten to the chase.
Perhaps the average opportunist car thief steals three cars per arrest, while the average hard core car thief steals thirty per arrest.
The upshot of this is that juicy decoys systematically reduce effectiveness of a car theft arrest at reducing future crime. The argument, moreover, holds applies generally to decoys not directed at particular suspected offenders.
The problem is similar to the problem that arises when poor legislative drafting allows relatively less culpable punishment fit receive the same harsh punishment as a serious core crime (e.g. RICO). Time and time again, the result is that the crime is used disproportionately to impose very harsh punishments on the least culpable people who fit the overbroad definition of the crime.
Decoys cause less culpable people to commit crimes (theft of an unlocked running car with a criminal owner who has abandoned the car) that have the same punishment as more culpable crimes (theft of a locked car and hotwiring it by a law abiding owner who has just stepped away for a moment). Both are theft, but one is more morally worrisome than the other.
August 11, 2010, 6:46 amDavid Schwartz says:
Well, sure, if you want to assume that nobody in the criminal justice system knows what they’re doing. But in that case, we’re screwed no matter what we do.
August 11, 2010, 7:03 amDavid M. Nieporent says:
I’d be willing to bet that he doesn’t have a criminal record; the judge originally instructed the jury on entrapment (and many of them bought it). If he had a criminal record, that wouldn’t have happened. That doesn’t prove he didn’t commit any crimes before, but you don’t know that.
Not until the police manufactured the crime. I don’t think police should be trying to create crimes just to pad their arrest statistics.
August 11, 2010, 8:47 amNo Comment says:
Well, sure, if you want to assume that nobody in the criminal justice system knows what they’re doing.
Well, we could use the undercover policeman as a decoy in the prison and then fire some CO’s if the decoy is raped. Frankly, that sounds like a better use of police than what happened on this thread. Likely to catch a whole lot of rapists — which is even more important than catching a few car thieves.
August 11, 2010, 9:19 amSuperSkeptic says:
I caught my first episode of Bait Car on TruTV last night. The very first woman I happen to see steal the car (an escalade) when I turned it on happened to have just been beaten by her boyfriend, and was allegedly just using the car to get away – as in just get away from the incident. She was clearly not thinking straight and visibly shaking the entire time. In fact, when the police apprehended her moments after exiting the parking lot where the vehicle was lying in wait, the arresting officer couldn’t even rub her face in the fact that she had been caught stealing the car on camera (which they do routinely on this show, apparently) and instead he noticed her bruised face and her countenance and just tried to calm her down before cuffing her and backseating her.
The next three guys (well, one was a 16 year old kid) were clearly scumbags.
August 11, 2010, 11:40 amOrenWithAnE says:
So perhaps the sting could have been better targeted to take out larger fish then ….
August 11, 2010, 11:52 amFub says:
Coming from a cop with grad school in counseling psychology, that’s got to be entrapment. We all know about grand juries and ham sandwiches.
Sarcastro to the red courtesy telephone, stat!
August 11, 2010, 2:43 pmwhit says:
absolutely. i’m not saying this is the best sting ever conducted by man!!!
i’m saying it was a damn good sting.
i don’t think there is anything done by government ever in the history of mankind that “couldn’t have been done better” fwiw.
maybe that’s the cynic… or the realist in me talking
i am happy because it got a car thief off the streets w/o danger to the public, w/o the inconvenience of innocents being stopped/detained and w/o risk of false arrest etc. as normal investigations are prone
August 11, 2010, 5:49 pmwhit says:
imo, anybody who would take a car in THIS sting would steal a car if they just happened upon an unattended car w/the keys in the ignition
given that unattended cars with the keys in the ignition are hardly a rarity in our society, it was a good sting. and considering in the case of THIS defendant, there is signifantly more evidence that he wasn’t just some innocent passerby entranced by the nefarious siren singing to him from the monte carlo (his niece called him and told him about it), it’s doubleplus good!
August 11, 2010, 5:53 pmwhit says:
exactly. assuming this was his first auto theft (or theft in general), which is a HYOOOOGE assumption, i think it’s good that he got caught. another thing i have learned from talking to thieves is that the more they got away with their minor thefts early in their career, the more emboldened they were to continue their life of crime and move on to bigger thefts.
criminals in general escalate thusly. very few do a huge theft right off the bat. they test the waters. they might start out shoplifting etc. move on to vehicle prowls, then burgs and auto thefts.
the first time a thief commits his crime he is sweating profusely CERTAIN that everybody saw him do it and omg he’s going to jail. and nothing happens. the next time it’s a bit easier and so on and so on…
sting had it right in “murder by numbers”…
and again, that’s assuming this was his first auto theft which i find exceptionally unlikely.
August 11, 2010, 5:57 pmwhit says:
ah yes, this famous rubbish
i arrest a thief “why aren’t you catching murderers and rapists! i wasn’t doing anything that bad. his insurance will cover it!”
i arrest a robber “hey, it’s not like i am a rapist. why are you arresting me? ”
i arrest a rapist “she ASKED for it. man, arrest a REAL rapist”
fwiw, auto theft is a crime that negatively affects the “average joe” significantly. a man’s home may be his castle, but there is a reason why “they hang horse thieves, don’t they”
let’s get real here. a very substantial percentage of murders are what we refer to as “misdemeanor homicides” iow hardly an “innocent” getting plugged, but instead one banger taking revenge on another banger.
auto theft hurts the AVERAGE joe. a genuine victim who is just trying to make a living. it sucks. auto thieves suck. they raise everybody’s insurance rates, they destroy property and lower value in general.
i can think of few decoy/sting type operations more beneficial to the general public than an auto-theft sting. they take thieves off the street, and they at least put some fear/deterrence in those that don’t get caught.
and MANY car owners in the hood do NOT have theft insurance. trust me. i take these reports. i can’t tell you how many tell me they didn’t have such insurance
it HURTS people.
this is an EXCELLENT use of police resources, but those who realize they can’t call it entrapment and see all their other arguments shot down in their reflexive quest to find blame with police fall upon this refuge of a scoundrel “well, it’s not like they are out there catching rapists and murderers”
seriously. get real.
August 11, 2010, 6:03 pmwhit says:
rubbish. you are saying that people with criminal records aren’t able to use an entrapment defense or be entrapped? seriously? you are simply wrong on the law.
whether or not the cops used entrapment is ENTIRELY tangential to whether the defendant had a criminal record. a career criminal can be entrapped just like a first time offender can commit a crime.
oh god. not this “manufactured” rubbish again.
and taking car thiefs off the street is a good thing. the fact that it adds to arrest stats is irrelevant to that.
August 11, 2010, 6:21 pmDavid M. Nieporent says:
To only-slightly oversimplify, in order to establish entrapment one has to show one wasn’t otherwise predisposed to commit the crime in question. Someone who has been convicted of car theft before has essentially zero chance of being able to establish that.
He wasn’t a car thief until after the police manufactured the crime. Turning someone into a criminal and then arresting him is not a good thing.
August 11, 2010, 7:02 pmwhit says:
david, i am going to make this as clear as possible to you because you CLEARLY DO NOT KNOW THE LAW…
this is false. it is not arguably false, it is not maybe false, it is not a matter of opinion … it is false.
you do NOT understand the law of entrapment
and you are now ‘hedging’. iow, you may realize that you were wrong when in the previous post you claimed a car thief could not be entrapped into car theft. now you say “essentially”
get some intellectual honesty and either admit you were wrong about entrapment or educate yourself on it. but don’t play games because you can’t admit you were wrong
ANYBODY can be entrapped. there is no exception where a person who has committed crime X before cannot be entrapped into committing crime X again.
i am not going to sit here and give you an intense lesson on the law of entrapment
if you do not believe me, then please appeal to the other legal eagles here. maybe they will be nice enough to educate you.
as an example.
Person X has been convicted of murder for hire.
can the police still entrap person X of a murder for hire?
absolutely
you are wrong
per-i-od
August 11, 2010, 7:29 pmNo Comment says:
ah yes, this famous rubbish
i arrest a thief “why aren’t you catching murderers and rapists! i wasn’t doing anything that bad. his insurance will cover it!”
I didn’t say to use police decoys to go after murderers. I also didn’t say to use police decoys to go after rapists. I said use police decoys to go after prison rapists. Upthread I also suggested that police put some decoys in at H&R Block.
If police are going to use decoys they should use not use them for more important objectives than catching thieves who prey on people who are stupid enough to leave their car unlocked with the keys in it. Your sense of priorities is classist, racxist and self serving. And you are a terrible listener.
That said, if police want to leave a bait car out that is locked and has no keys, I say have at it. Then you might catch a thief who preys on reasonably careful folks. As it is, police are just creating crime to play the stats game. Stupid, stupid, stupid. And perhaps even entrapment (although I say let the ghetto jury decide on that last one).
August 11, 2010, 7:50 pmwhit says:
you must be doing a parody of an idiotic progressive…
because i can’t take THIS seriously
“If police are going to use decoys they should use not use them for more important objectives than catching thieves who prey on people who are stupid enough to leave their car unlocked with the keys in it. Your sense of priorities is classist, racxist and self serving. And you are a terrible listener”
that is beyond lol-funny.
right. because catching auto thieves is “classist, racist and self-serving”
the self-serving part is the most ridiculous
but the racist part is pretty good too. darn those legislators for passing racist laws like criminalizing auto theft. they are just trying to keep a brother down, clearly.
i love the way you eventually outed yourself
you have devolved from deluded but sincere into the realm of the patently absurd.
i guess we’ll just have to feed the capitalist imperialists white supremacist racist classist heterosexist heteronormative insect fascist machine then and keep arresting auto thieves.
darn us!
August 11, 2010, 9:42 pmDavid M. Nieporent says:
Isn’t it cute when cops pretend they know the law?
I say “essentially” because I am discussing generally a doctrine which is defined in 51 different jurisdictions, some by statute and some by court decision, and because as a lawyer one learns never to make a categorical claim since one can almost always invent a far-fetched enough hypothetical in which a general rule does not apply.
I didn’t say that there was an “exception.” I said that it would be virtually impossible for someone who has stolen cars in the past to successfully claim that he wasn’t predisposed to steal a car and only did so because he was induced to do by the government.
August 11, 2010, 10:30 pmwhit says:
no, actually (and not that i expect intellectual honesty from you but)
you said…
“I’d be willing to bet that he doesn’t have a criminal record; the judge originally instructed the jury on entrapment (and many of them bought it). If he had a criminal record, that wouldn’t have happened”
that’s false.
you are simply wrong on the law.
just because somebody has been convicted of crime X does not mean they cannot be entrapped into committing crime X. and it does not mean a judge won’t give jury instructions on it if there is a case to be made for entrapment
you can make snarky comments about my profession or whatever but that doesn’t change the facts. if you are a lawyer, a cop, or have a doctorate in the law, i don’t care. you still don’t know it. cause that aint the law.
a drug dealer CAN get entrapped into selling drugs and CAN use entrapment as a defense given a reasonable case of it. iow, and this is simply the law, not my opinion…
having been convicted of a certain crime in the past does not mean the police can’t entrap you in the future of the same (or similar crime), or that entrapment cannot be a defense in a future incident, etc.
fwiw, to respond to your snarky comment, the fact that i am a cop is not why i know the law of entrapment. most cops never deal with entrapment law and their knowledge of it is roughly similar the average layman’s understanding of it.
i worked a deep undercover assignment and received specialized training, to include training by an accomplished prosecutor (who handled drug cases almost exclusively) and the DEA. that’s why i know the law of entrapment. and in over 120 drug cases, entrapment was never used as a defense because i knew the law and what i could and couldn’t do. that’s because i learned from a very smart lawyer and a very good DEA agent.
you will either be intellectually honest (i doubt it, but i hold out hope in your redemption) and admit that, or either evade, ignore it, or make some sort of snarky ad hominem
but that’s the law and you were wrong on it
hth
August 11, 2010, 10:35 pmDavid Schwartz says:
Unless I’m confused, the test is generally not whether you were personally predisposed to commit the crime. The test is whether the conduct on the part of the police would be likely to induce a reasonable person, not predisposed to commit any crime, to commit a crime.
For an example of why the difference matters, consider a very desperate person who is predisposed to commit almost any crime where he thinks he can make a buck and get away with it. If the police use a technique that would snare almost anyone (say the wallet on the ground example), they cannot argue it is not entrapment because they happened to, by luck, snare someone predisposed to commit the charged crime.
August 11, 2010, 10:52 pmDavid M. Nieporent says:
You’re not confused, but you’re not right, either. The standard varies from jurisdiction to jurisdiction. Some use the so-called “objective test” (that you describe) while others, such as the federal government, use the “subjective test” (and others use a hybrid).
August 11, 2010, 11:20 pmwhit says:
and in NONE of those jurisdictions does the fact that a person has previously been convicted of the same offense mean that they cannot be entrapped on another case
if what you said was true, the police would have carte blanche to entrap a person with a prior drug sale conviction.
that is clearly not the case, and you know it
i’ll stand by to see if you have the intellectual honesty to admit that
August 11, 2010, 11:26 pmDavid Schwartz says:
Wow. That makes the validity of a sting’s arrest unknown until we pry into the details of the background of the person it ultimately ensnares. How bizarre.
And you’re right. One Federal court phrased the question as “whether the Defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials”.
Sherman v. United States is a good example of a “repeat offender” who successfully argued entrapment despite a prior record of the same offense, even under the Federal test. However, the police specifically targeted him.
August 12, 2010, 12:03 amKatahdin says:
Whit, FWIW I took David’s quoted section to mean that if the gent had priors for auto theft, he/his atty wouldn’t have tried to raise an entrapment defense, because they would not expect the jury to buy that for someone with priors. IANAL, but that sounds likely to me. I didn’t read it as a claim he couldn’t raise an entrapment defense as a matter of law, just that it was unlikely as a tactical matter if there were priors.
His niece calling him pretty much establishes that he’s a crook, but perhaps he’s a crook with no auto theft priors. Given the apparent family support structure, maybe he was well tutored and has managed to steal a lot of cars w/o getting caught.
August 12, 2010, 10:07 amKirk Lazarus says:
How is it a crime to drive a car away if that’s what the owner wanted you to do? Couldn’t leaving the keys in the ignition with the intent that someone drive the car away be considered equivalent to giving a general consent to persons’ driving the car away?
August 13, 2010, 7:24 pmDavid M. Nieporent says:
It isn’t. Where did you get the idea that the owner wanted him to do so?
There was no such intent, so no.
August 13, 2010, 8:55 pmEric says:
Wow. What a thread. Some observations:
- whit has essentially cleaned every comer’s clock.
- The lengths to which some will go to rationalize criminal behavior is astounding.
- Leaving a car in the parking lot unlocked with the keys in it is not “manufacturing a crime.” Just like whit said, people do it (foolishly) all the time. Driving off with it for a “test drive” (eye roll) because your niece told you it was an easy score is “manufacturing” a crime.
- To think that whit could spend 20+ years as a cop — even “just” a uniformed flatfoot, never mind the UC stints — and some how could never know anything about what the people on his beat think about being ripped off; now there’s some delusion for you. And if you think it’s because whit is a different race than most of his beat neighborhood, then there’s some actual “classist, racxist (sic) and self serving” thinking.
- As for the part of the population that would not commit a theft unless all the “stars were aligned” and there was apparently zero chance of getting caught — and the police put a car with the keys in it right in front of them — they are known as “thieves.” Because they stole the car. Which brings me to…
Last but not least — for damn sure do not leave your car with the keys in it (or your stash, or your wallet) unattended in the vicinity of a Volokh thread. There are far too many guilty consciences trying to rationalize their larcenous leanings here…
August 14, 2010, 12:50 ammarkm says:
Now, Eric. They’re ethical upper-middle-class Americans trying to rationalize the alleged larcenous leanings of their social inferiors.
Or else they’re lawyers. I can quite well see a lawyer trying all the specious arguments above in hopes the judge or jury is fool enough to fall for one of them and let his car-stealing client off – that is a practicing lawyer’s ethical obligation, when plea-bargaining fails. But I can’t see any sane lawyer, however unethical, with a chance of earning a living at law, endangering his own legal license by stealing a car himself. Unethical lawyers steal in ways that are difficult to prove legally. Grand theft auto isn’t.
I am surprised that in a forum that attracts many law professors and students (I’m not sure how many practicing lawyers), I hear the claim that a prior record would rebut the entrapment defense – and no one has pointed out that trial courts generally won’t even admit evidence of priors during the guilt phase.
August 15, 2010, 10:37 ammarkm says:
As for who gets caught up by such a sting:
How many of you would even know how to sell a stolen car? I wouldn’t know where to begin looking for a fence now. In my early 20′s, I knew one or two people who presumably knew people who could refer me to a chop shop, but I certainly wouldn’t have wanted to hide a stolen car for several days while I followed through this chain and worked out a deal with a buyer (who’d have wanted to protect himself against the chance that I was an informant). But I didn’t seek out such people, I just knew them because they lived nearby; I was economizing on college living expenses with an apartment in the bad part of town. I get the impression that very few VC readers ever meet either the honest poor or the criminal underclass, except as clients and defendants. (They probably did know, and may have once been, upper-middle class teenagers who were foolish enough to steal a car just for a joyride, given such an easy opportunity. Such kids are likely to think their parents can get them out of any kind of trouble. Poorer kids know better, although too many of them get into trouble anyway…)
That does not appear to describe the defendant in this case. He had people out watching for easy opportunities for car theft. He may or may not have been caught before, but he knew where to sell a stolen car, and most likely was a regular supplier. The way the police conducted this sting maximized the chances of catching a career thief and minimized the chances of catching just a joyriding idiot kid. On the average, stings of this sort will put away many thieves who regularly steal cars and anything else that is easy to steal, and dramatically reduce the thefts in the area.
With all that said, such stings would be much more effective at reducing crime if the police would devote a few more resources to the case and followed the stolen car until it came to a halt, probably at a chop shop. There would then be no doubt about what kind of thief they’d lured, and a number of other thieves would be laying low and hoping their buyer wouldn’t talk.
August 15, 2010, 11:11 am