P29
No. 14-1107
In The
Supreme Court of the United States
Malik PRICE; Cedrick R. Jones; and Ben Carter,
Petitioners,
-againstUNITED STATES of America,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
PETITIONERS’ BRIEF ON THE MERITS
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iv
STATEMENT OF THE ISSUES................................................................................................... ix
STATEMENT OF THE FACTS .................................................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................................................. 3
STANDARD OF REVIEW ............................................................................................................ 5
ARGUMENT & AUTHORITIES ................................................................................................... 5
I.
THE GOVERNMENT USED UNLAWFUL DEADLY FORCE TO SEIZE MR. CARTER AND
OBTAIN EVIDENCE IN VIOLATION OF THE FOURTH AMENDMENT ........................................ 5
A. Seizure Occurred When Agent Holder Shot Mr. Carter with the Intention of
Restraining His Movement ........................................................................................... 6
1. The applicable definition of seizure is that of Hodari: the intentional use
of physical force to restrain movement ............................................................. 7
2. Agent Holder intentionally shot Mr. Carter to restrain his movement ............... 9
B. Agent Holder Lacked Probable Cause to Use Deadly Force Against Mr. Carter....... 10
C. The ATF Forced Mr. Carter to Abandon His Backpack and Seized Evidence
Against Him as a Direct Result of that Unlawful Action ........................................... 15
II.
DUE PROCESS SHIELDS CITIZENS FROM OUTRAGEOUS GOVERNMENT CONDUCT
SUCH AS THE ATF’S CREATION OF CRIMES DESIGNED SOLELY TO OBTAIN
CONVICTIONS AND ITS VIOLENT DISREGARD OF THE FOURTH AMENDMENT.. ................... 17
A. The Outrageous Government Conduct Defense Is an Essential Constitutional
Safeguard that Empowers Courts with Discretion to Regulate Law
Enforcement ................................................................................................................ 18
B. The ATF's Practice of Creating Reverse-Stings for the Sole Purpose of
Obtaining Convictions is Outrageous Government Conduct...................................... 20
1. Reverse-stings force convictions based on class or race, not criminal
history ............................................................................................................. 21
ii
2. Reverse-stings force convictions by coercing and encouranging
defendants to commit crimes .......................................................................... 21
3. The ATF randomly recruited from the worst part of the city, and then
coerced and encouraged defendants to commit crimes solely to obtain
convictions ...................................................................................................... 23
C. Shooting Two Unarmed Men in Violation of the Fourth Amendment Is Also
Outrageous Government Conduct............................................................................... 25
CONCLUSION ............................................................................................................................. 25
APPENDIX A: THE FOURTH AMENDMENT .....................................................................................a
APPENDIX B: THE FIFTH AMENDMENT ........................................................................................ b
iii
TABLE OF AUTHORITIES
CASES
Bolling v. Sharpe,
347 U.S. 497 (1954) .................................................................................................................. 21
Bouggess v. Mattingly,
482 F.3d 886 (6th Cir. 2007) ..................................................................................................... 11
Brendlin v. California,
551 U.S. 249 (2007) .................................................................................................................... 9
Brooks v. Gaenzle,
614 F.3d 1213 (10th Cir. 2010) ............................................................................................... 6, 8
Brower v. County of Inyo,
489 U.S. 593 (1989) ................................................................................................................ 6, 7
Brown v. Illinois,
422 U.S. 590 (1975). ........................................................................................................... 15, 17
California v. Hodari D.,
499 U.S. 621 (1991) ........................................................................................................... passim
County of Sacramento v. Lewis,
523 U.S. 833 (1998) .................................................................................................................... 8
Flores v. City of Palacios,
381 F.3d 391 (5th Cir. 2004) ..................................................................................................... 12
Florida v. Bostick,
501 U.S. 429 (1991) .................................................................................................................... 9
Graham v. Connor,
109 S. Ct. 1865 (1989) .............................................................................................................. 14
Hampton v. United States,
425 U.S. 484 (1976)
(plurality opinion) ............................................................................................................... 18, 19
iv
Hickenbottom v. Nassan,
2007 U.S. Dist. LEXIS 24336 (W.D. Pa. Mar. 30, 2007) ......................................................... 13
Long v. Slaton,
508 F.3d 576 (11th Cir. 2007) ............................................................................................. 11, 12
Moran v. Burbine,
475 U.S. 412 (1986) .................................................................................................................. 18
Ornelas v. United States,
517 U.S. 690 (1996) .................................................................................................................... 5
Plumhoff v. Rickard,
134 S. Ct. 2012 (2014) .............................................................................................................. 12
Rochin v. California,
342 U.S. 165 (1952) ............................................................................................................ 19, 25
Scott v. Harris,
127 S. Ct. 1769 (2007) ........................................................................................................ 11, 12
Sorrells v. United States,
287 U.S. 425 (1932)
(Roberts, J., separate opinion) ................................................................................................... 18
Tennessee v. Garner,
471 U.S. 1 (1985) ............................................................................................................... passim
Terry v. Ohio,
392 U.S. 1 (1968) .................................................................................................................... 5, 6
United States v. Black,
733 F.3d 294 (9th Cir. 2013)
(Black I) ............................................................................................................................. passim
United States v. Black,
750 F.3d 1053 (9th Cir. 2014)
(Reinhardt, J., dissenting from denial of rehearing en banc)
(Black II) ............................................................................................................................. 21, 22
v
United States v. Bout,
731 F.3d 233 (2d Cir. 2013) ................................................................................................ 21, 25
United States v. Boyd,
55 F.3d 239 (7th Cir. 1995) ....................................................................................................... 18
United States v. Brown,
(N.D. Ill. 2013) (Castillo, J.) (Discovery Order) ....................................................................... 21
United States v. Dion,
762 F.2d 674 (8th Cir. 1985) ..................................................................................................... 22
United States v. Dupree,
617 F.3d 724 (3d Cir. 2010) .................................................................................................... 5, 6
United States v. Dyke,
718 F.3d 1282 (10th Cir. 2013) ..................................................................................... 18, 19, 21
United States v. Gardner,
658 F. Supp. 1573 (W.D. Pa. 1987) .......................................................................................... 21
United States v. Hudson,
3 F. Supp. 3d 772 (C.D. Cal. 2014)............................................................................... 22, 23, 24
United States v. Jannotti,
673 F.2d 578 (3d Cir. 1982) (en banc) ...................................................................................... 19
United States v. Kindle,
698 F.3d 401 (7th Cir. 2012) ..................................................................................................... 24
United States v. Lard,
734 F.2d 1290 (8th Cir. 1984) ................................................................................................... 21
United States v. Leon,
468 U.S. 897 (1984) .................................................................................................................... 5
United States v. Letsinger,
93 F.3d 140 (4th Cir. 1996) ......................................................................................................... 6
vi
United States v. Mosley,
965 F.2d 906 (10th Cir. 1992) ................................................................................................... 18
United States v. Pitt,
193 F.3d 751 (3d Cir. 1999) ...................................................................................................... 20
United States v. Place,
462 U.S. 696 (1983) .................................................................................................................. 15
United States v. Posada Carriles,
541 F.3d 344 (5th Cir. 2008) ............................................................................................... 21, 22
United States v. Russell,
411 U.S. 423 (1973) ................................................................................................ 18, 19, 18, 20
United States v. Smith,
423 F.3d 25 (1st Cir. 2005) ......................................................................................................... 5
United States v. Tucker,
28 F.3d 1420 (6th Cir. 1994) ......................................................................................... 18, 19, 20
United States v. Zapata,
18 F.3d 971 (1st Cir. 1994) ......................................................................................................... 6
Wong Sun v. United States,
371 U.S. 471 (1963) .................................................................................................................. 15
STATUTES & CONSTITUTIONAL PROVISIONS
FED. R. CRIM. P. 12(b)(1) .............................................................................................................. 18
U.S. CONST. amend. IV................................................................................................................5, a
U.S. CONST. amend. V .............................................................................................................. 18, b
OTHER AUTHORITIES
BLACK’S LAW DICTIONARY
16c. (9th ed. 2009) (defining probable cause) ........................................................................... 10
vii
Nusrat Choudhury, Ferguson is Everytown, U.S.A.,
ACLU RACIAL JUSTICE PROGRAM (Aug. 18, 2014, 5:07 PM),
https://www.aclu.org/blog/racial-justice-criminal-law-reformfree-speech/ferguson-everytown-usa .................................................................................. 13, 14
Stephen A. Miller, Comment,
The Case for Preserving the Outrageous Government Conduct Defense,
91 NW. U. L. REV. 305 (1996) ................................................................................................... 19
viii
STATEMENT OF THE ISSUES
I.
FOURTH AMENDMENT RIGHTS
A. Seizure occurs where officers use physical force with the intent to restrain movement.
A gunshot is physical force that restrains movement. Officers intentionally shot Ben
Carter two times to prevent his escape. Was Ben Carter seized when he was shot?
B. An officer has probable cause to use deadly force to prevent a suspect’s escape only
when that officer reasonably believes the suspect poses an immediate threat of serious
physical harm to others. Ben Carter was unarmed. He was actively retreating. And he
had committed no violent crimes. Did Agent Holder reasonably believe that Mr.
Carter posed an imminent threat of serious physical harm to others?
C. The exclusionary rule requires that evidence be suppressed where it is obtained as a
direct result of the illegal police action. Agent Holder seized Mr. Carter with
unreasonable deadly force. Mr. Carter’s gunshot wounds forced him to seek
immediate medical attention and to abandon his backpack. Was his abandonment of
the backpack a direct result of his gunshot wounds?
II.
FIFTH AMENDMENT RIGHTS
A. Due process guarantees freedom from unconstitutional law enforcement. The
outrageous government conduct defense effectuates this guarantee. Without the
defense, individuals would have no recourse against abusive law enforcement
techniques. This Court has implicitly recognized the defense on multiple occasions.
Should this Court explicitly recognize the defense?
B. It is outrageous government conduct to create crimes for the sole purpose of obtaining
convictions. In initiating the crime, the government invented a fictional stash house
robbery and targeted defendants vulnerable to economic coercion. In executing the
crime, the government required defendants to perform additional recruiting to
increase the number of participants. The government convicted each living defendant.
Did the government create this crime solely for the purpose of obtaining convictions?
C. Violence that disregards the Fourth Amendment is outrageous government conduct.
This analysis considers the government’s operation as a whole. Part of the ATF
operation involved the use of unreasonable deadly force against Mr. Carter in
violation of the Fourth Amendment. Was this outrageous government conduct?
ix
STATEMENT OF THE FACTS
The Parties. This case is about inherently violent and racially discriminatory law enforcement
techniques that upset the balance between obtaining convictions and constitutional federal police
action. In April 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
indicted Defendants Malik Price, Cedrick Jones, and Ben Carter (“Defendants”) for various
crimes surrounding an ATF “stash house robbery reverse-sting.” (“reverse-sting”) R. at 1.
The ATF Targets Previously Untargeted Black Men. In May 2009, the ATF implemented
reverse-sting operations designed to target suspects engaged in government-initiated robberies.
R. at 2. These operations have led to injury and death, R. at 3, and focus on ensnaring
“previously untargeted young black men in poor and crime-ridden areas of Green Ridge.” R. at
3–4. These operations do not target known criminals. R. at 4.
The ATF Initiates the Criminal Operation. The ATF hired and paid a Confidential Informant
(“CI”) to ensnare suspects. See R. at 4. The CI found targets in the “worst part of the city” by
going to block parties and bars, meeting shady people. Id. On March 8, 2013, the CI approached
Malik Price at a party and asked if “he was interested in a big payday.” Id. Ten minutes later,
Terrance Price, Malik’s brother, asked the CI if he “knew of any good ‘come ups’” Id. The CI
asked Terrance if he would be interested in a robbery that would pay over $500,000. R. at 5.
Terrance agreed, and the CI set a meeting between Terrance and Agent Miller. Id.
The ATF Oversees the Robbery Plans. Miller described the stash house, security guards, and
large amount of cocaine inside. Id. At Miller’s request, Terrance assembled a crew, and brought
Mr. Jones and Mr. Ingram to subsequent meetings. See id. Miller provided the fake stash house’s
address, and offered to provide a getaway car and safe house. R. at 6, 38, Ex. C1.
1
The Reverse-Sting Becomes Violent. On April 4, 2013, Defendants and Miller traveled to a
park in a van to discuss the plan. R. at 6. When Miller stepped away from the van, ATF agents
threw a stun grenade at the van. See id. After the explosion, Terrance emerged from the van with
a weapon. Id. Several shots were fired by Terrance and agents. Id. Terrance was killed. Id. ATF
Special Agent Sarah Nelson was hit in the back and paralyzed from the waist down. Id. Ingram
fled the scene with Jones and Malik as passengers Id. Ingram crashed into an electrical pole and
was immediately killed. Id. Jones and Malik were critically injured. Id.
Agent Holder Shoots Two Unarmed Black Men. Shortly after, ATF agents received report of
two “suspicious looking men loitering” on the street “near” the stash house. R. at 7. Special
Agents Holder and Martin approached the men. R. at 8. The men retreated, running away from
the agents and the stash house. Id. After running 600 feet, Michael Roby, stopped and pulled a
fake gun out of his pocket. R. at 7–8. He pointed it up in the air and raised his other hand, yelling
“this is a fake gun, please don’t shoot me!” R. at 7. Agent Holder killed Mr. Roby by shooting
him in the chest. Id. Agent Holder pursued the other fleeing defendant, Ben Carter. R. at 8. He
saw Mr. Carter change course toward a lone parked car. Id. Mr. Carter turned around to look for
Michael Roby. R. at 56, Ex. F. As Mr. Carter approached the car, he reached in his pocket. R. at
8. Before Mr. Carter could remove a car key, Agent Holder shot him twice. Id. Mr. Carter fled in
the car before Agent Holder could shoot him again. Id.
Police Seize Mr. Carter’s Abandoned Property. At 3:45 p.m., police found a car one mile
from the scene matching the description of Mr. Carter’s vehicle. R. at 8. It was crashed into a
ditch on the side of the road, and covered in blood. R. at 8. The keys were in the ignition and it
had ample gasoline. R. at 8. An accident reconstructionist found that the driver did not attempt to
avoid a crash. R. at 9. Later, ATF agents apprehended Mr. Carter at a nearby hospital. Id.
2
SUMMARY OF THE ARGUMENT
Defendant Ben Carter seeks to have the contents of his backpack suppressed under the Fourth
Amendment. Defendants all move to dismiss the indictment under the Fifth Amendment.
I.
FOURTH AMENDMENT MOTION TO SUPPRESS
First, Agent Holder seized Mr. Carter. There are two types of seizure: (1) show of authority
seizure, and (2) physical force seizure. Hodari addressed both types of seizure, defining physical
force seizure as, “a laying on of hands or application of physical force to restrain movement,
even when it is ultimately unsuccessful.” In contrast, Brower did not address physical force
seizures. Thus, Hodari must govern physical force cases. This is a physical force case. Agent
Holder seized Mr. Carter by shooting him with the intent to restrain him.
Second, the Government lacked probable cause to use deadly force against Mr. Carter. Unless
an officer reasonably believes a suspect poses an immediate threat of serious physical harm to
himself or others, he lacks probable cause to use deadly force to prevent escape. Here, Mr. Carter
did not pose an immediate threat of serious physical harm. He was not armed, and had not
threatened Agent Holder. Instead, he was actively retreating. Officers could have eliminated the
possibility of a car chase by shooting Mr. Carter’s tires, rather than Mr. Carter. Additionally,
racial discrimination occurs when unreasonable deadly force is used against unarmed black men
too often. This Court must set standards for law enforcement, and should reinforce the standards
of the Fourth Amendment by finding the use of deadly force against Mr. Carter unreasonable.
Third, the exclusionary rule applies. Because Mr. Carter abandoned the evidence as a direct
result of the government’s unlawful actions, that evidence must be suppressed. Mr. Carter did
not abandon his backpack as an act of free will. Local police found the evidence at a time at
which the day’s events were ongoing. Mr. Carter driving one mile away did not affect the agents’
3
ability to discover the evidence. Finally, the flagrancy of this conduct should be considered.
Agent Holder used unreasonable deadly force. The government ensnared defendants by creating
fictional crimes solely to obtain false convictions. If the exclusionary rule is not applied, this
type of government conduct will be endorsed. Mr. Carter’s Motion to Suppress must be granted.
II.
FIFTH AMENDMENT MOTION TO DISMISS THE INDICTMENTS
First, this Court should explicitly recognize the outrageous government conduct defense. Due
process guarantees meaningful boundaries on government conduct. The outrageous government
conduct defense is the only tool that can effectuate these boundaries and fully safeguard
defendants from unconstitutional law enforcement techniques. When the judiciary applies the
defense, it does not violate separation of powers because it is enforcing due process.
Second, the outrageous government conduct defense applies in this case. It is outrageous
government conduct to create crimes for the sole purpose of obtaining convictions. The ATF’s
reverse-sting operation did just that. At the initiation stage, the ATF improperly targeted its
recruitment at poor, minority defendants. Post-initiation, the ATF economically coerced the
defendants and encouraged their criminal activity. None of this conduct was justified by the war
on drugs. Instead, this conduct indicates a sole purpose of obtaining convictions.
Third, this Court should also consider the unconstitutional use of deadly force against Mr.
Roby and Mr. Carter. Violence that disregards the Fourth Amendment is the quintessential
example of outrageous government conduct. Thus, this Court should dismiss the indictments.
4
STANDARD OF REVIEW
Courts review questions of law de novo. See Ornelas v. United States, 517 U.S. 690, 692
(1996). Each Fourth Amendment issue is a question of law.1 Whether an indictment must be
dismissed due to outrageous government conduct is also a question of law. United States v.
Black, 733 F.3d 294, 301 (9th Cir. 2013). Thus, each issue is subject to de novo review.
ARGUMENT & AUTHORITIES
Defendants were arrested and charged with various federal crimes: (1) conspiracy to possess
twenty-five kilograms of cocaine with intent to distribute; (2) multiple counts of possessing a
firearm in furtherance of a drug trafficking offense; (3) multiple counts of attempted murder; and
(4) conspiracy to commit arson. Id. Defendants collectively bring two motions. R. at 2.
Defendant Ben Carter seeks to have the contents of his backpack suppressed under the Fourth
Amendment. Id. Defendants collectively move to dismiss the indictment under the Fifth
Amendment. Id. Both motions must be granted under the Fourth and Fifth Amendments.
I.
THE GOVERNMENT USED UNLAWFUL DEADLY FORCE TO SEIZE MR. CARTER
AND OBTAIN EVIDENCE IN VIOLATION OF THE FOURTH AMENDMENT.
The Thirteenth Circuit erred in refusing to grant Mr. Carter’s Motion to Suppress. The
exclusionary rule should be applied because it is the principal mode of deterring unlawful
searches and seizures. Terry v. Ohio, 392 U.S. 1, 12 (1968). The Fourth Amendment guarantees
“the right of the people to be secure . . . against unreasonable . . . seizures.” U.S. CONST. amend.
IV. Fourth Amendment analysis of police conduct typically proceeds in three stages. United
States v. Dupree, 617 F.3d 724, 730 (3d Cir. 2010). First, the Court determines that a seizure
1
See United States v. Smith, 423 F.3d 25, 27–28 (1st Cir. 2005) (whether seizure occurs is a
question of law); see also Ornelas, 517 U.S. at 692 (whether probable cause exists is reviewed as
a question of law); United States v. Leon, 468 U.S. 897 (1984) (applicability of the exclusionary
rule is a question of law).
5
occurred. Id. Second, it determines that the seizure was unreasonable. Id. Third, it determines
that evidence obtained as a result of that unlawful seizure should be suppressed. Id. While it is
true that Mr. Carter must prevail at each level of this analysis in order to exclude the contents of
his backpack, he meets each test. Accordingly, the evidence against him must be suppressed.
A. Seizure Occurred When Agent Holder Shot Mr. Carter with the Intention of
Restraining His Movement.
Under the Fourth Amendment, “seizure” is a term of art. This analysis is critically important
as all Fourth Amendment inquiries begin with a determination of when seizure occurred. Terry,
392 U.S. at 12. In 1968, this Court held that “whenever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16. The Court went on to
say that “[o]nly when [an] officer, by means of physical force or show of authority, has in some
way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred. Id. at 20
n.16. This divided seizures into two distinct categories: (1) show of authority seizure, and (2)
physical force seizure. More recently, the Court expanded on this division with two opinions.
Compare California v. Hodari D., 499 U.S. 621 (1991), with Brower v. County of Inyo, 489 U.S.
593 (1989).2 Each case addressed show of authority seizures, but Hodari alone defined seizure in
the context of physical force: “a laying on of hands or application of physical force to restrain
movement, even when it is ultimately unsuccessful.” Hodari, 499 U.S. at 626.
2
Reconciling these two cases has produced considerable confusion. See, e.g., United States v.
Zapata, 18 F.3d 971, 976 (1st Cir. 1994) (declining to apply Hodari and holding that physical
touching by a police officer did not transform a lawful Terry stop into an unlawful arrest); United
States v. Letsinger, 93 F.3d 140, 143 (4th Cir. 1996) (finding that Hodari created two exceptions
to the general common law requirement of actual custody for seizure—a physical touching
without control or a complied-with show of authority); Brooks v. Gaenzle, 614 F.3d 1213, 1221
(10th Cir. 2010) (finding the definition of seizure in Hodari to be dicta).
6
1. The applicable definition of seizure is that of Hodari: the intentional use of
physical force to restrain movement.
The distinction between show of authority seizure and physical force seizure affects whether
and when seizure occurs on a particular set of facts. Show of authority seizures include
commands by officers to submit to the authority of law enforcement. For example, a command to
“stop in the name of the law” is a show of authority. See id. In contrast, physical force seizures
require a physical act of interference by the police in order to detain a suspect against his will.
See id. The use of a gun and bullets constitutes physical force for purposes of Fourth
Amendment analysis. See Tennessee v. Garner, 471 U.S. 1, 11 (1985). Here, Agent Holder shot
Mr. Carter twice. R. at 8. Accordingly, this is a physical force case.
Because this is a physical force case, Brower does not apply. There, police pursued a fleeing
suspect who never succumbed to demands to stop, making it a show of authority case. Brower,
489 U.S at 594. County officers designed a roadblock to deceive the suspect into crashing. Id.
The Court held that unless law enforcement uses “means intentionally applied” to seize a
suspect, no seizure occurs. Id. While the Court found that seizure did occur, it did not define
what type of intentional conduct constitutes “seizure.” Instead, it made the intentional attempt to
seize necessary—but did not address how such actions become sufficient—to find a seizure.
In contrast, the facts of Hodari required the Court to articulate standards for physical force
cases as well as for show of authority cases. There, an officer pursued a fleeing suspect on foot.
Hodari, 499 U.S. at 623. The suspect did not yield to the officer’s commands to halt. Id. Instead,
he discarded his collection of crack cocaine, and was tackled by the officer moments later. Id.
Only if seizure occurred before the crack cocaine was discarded could that evidence be
suppressed. Id. at 623–24. The issue in Hodari was therefore whether the officer’s commands to
halt constituted seizure. Id. Accordingly, the Hodari Court was required to define “seizure.”
7
Relying on the distinction between a show of authority and physical force, the Court found
the evidence admissible.3 Id. at 629. In denying Fourth Amendment protection, it determined that
its facts created a show of authority case. Id.
This distinction is why the physical force definition in Hodari is not dicta but rather part of its
holding. In reaching the opposite conclusion on this point, the Thirteenth Circuit, relying on the
Tenth Circuit in Brooks v. Gaenzle,4 misanalysed Hodari. The issue in Hodari was whether a
seizure occurred when the suspect did not yield to commands to stop. Hodari, 499 U.S at 626.
Physical force seizures and show of authority seizures are binary. See id. As a result, the Court
had to analyze both types of seizure to determine which type it was addressing. Id. Only after
defining physical force seizure, and determining that the use of such force was absent, could the
Court analyze the facts as a show of authority seizure to conclude that no seizure occurred. Id.
Thus, the Court’s definition of physical force seizure was necessary for it to decide the issue
presented in Hodari. As a result, both definitions must be given equal precedential value.
This distinction also reconciles cases that have come after Hodari. For example, the
Thirteenth Circuit found that County of Sacramento v. Lewis5 clarified the entire holding in
Hodari. 523 U.S. at 843–44; R. at 26. But this was an incorrect finding. While the Court cited
Hodari in a footnote for the principle that an attempted seizure is not a seizure,6 that was a
3
While the Court never explicitly distinguishes between show of authority and physical force
seizures, this is because this distinction is long-standing. Instead, the Court implicitly applied this
distinction by analyzing the two in turn. See Hodari, 499 U.S at 625 (the Court transitioned from
physical force seizure to show of authority seizure by stating that “[t]he present case, however, is
even one step further removed. It does not involve the application of any physical force . . . .”).
4
614 F.3d 1213 (10th Cir. 2010) (citing a portion of the Hodari opinion that governed show of
authority seizures)
5
523 U.S. 833 (1998)
6
Id. at 844 n.7
8
reiteration of a portion of the Hodari opinion that applied to show of authority seizures only.
Hodari, 499 U.S at 626. The Hodari Court explained that the Fourth Amendment applies to the
“laying on of hands or application of physical force to restrain movement, even when it is
ultimately unsuccessful.” Id. This addressed the use of physical force. See id. It then explained
that the Amendment “does not remotely apply, however, to the prospect of a policeman yelling
‘Stop, in the name of the law!’ at a fleeing form that continues to flee.” Id. This addressed the
use of a show of authority. See id. It is only in the second sentence—the point at which the Court
addressed show of authority—that it implies that successful apprehension is required by stating
that an attempted seizure is not a seizure. Id. In fact, it clearly says, with respect to the use of
physical force, that seizure occurs “even when it is ultimately unsuccessful.” Id.
Additionally, while other cases since Hodari have declined to apply its physical seizure
definition, they do so only where physical force was not at issue. 7 The idea that Hodari and
Brower should be read consistently, with Hodari clarifying Brower, is emphasized by the fact
that Justice Scalia wrote both opinions within three years. While Brower addresses accidental
seizure and show of authority, Hodari addresses both show of authority and physical force.
Failure to note this critical distinction caused the Thirteenth Circuit to misapply these cases.
2. Agent Holder intentionally shot Mr. Carter to restrain his movement.
Under Hodari, Agent Holder seized Mr. Carter by shooting him.8 Mr. Carter could not walk
properly after being shot. R. at 8. While he eventually drove away, he only made it one mile
from the scene of the shooting. Id. He was apprehended hours later at a hospital. Id. It is
7
Florida v. Bostick, 501 U.S. 429, 434 (1991) (addressing the consensual search of a bus
passenger’s luggage); Brendlin v. California, 551 U.S. 249, 253 (2007) (addressing a show of
authority case involving an automobile stop).
8
In fact, “there can be no question that apprehension by the use of deadly force is a seizure
subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7.
9
irrelevant that he was not immediately taken into custody after being shot. Under Hodari, all that
matters is that Agent Holder shot Mr. Carter with the intention of restraining his movement. And
in fact, Agent Holder testified that he shot Mr. Carter “to stop him from possibly shooting Brett,
[himself], or an innocent bystander.” R. at 60, Ex. F. This reflects Agent Holder’s intent to
restrain Mr. Carter’s movement. Accordingly, under Hodari, the government seized Mr. Carter
when Agent Holder shot him.
B. Agent Holder Lacked Probable Cause to Use Deadly Force Against Mr. Carter.
The Thirteenth Circuit erred in finding the government had probable cause to shoot Mr.
Carter. Without probable cause to use deadly force, that seizure was unreasonable. It is
unreasonable for an officer to shoot an unarmed, non-dangerous suspect. Garner, 471 U.S. at
30–31. Instead, an officer may prevent a suspect’s escape with deadly force only where he has
probable cause to do so, meaning the officer reasonably believes the suspect poses an immediate
threat of serious physical harm to others. Id. at 11.
The presence of several factors make an officer’s belief that a suspect poses an immediate
threat unreasonable: (1) the suspect does not threaten the officer with a weapon; (2) there is no
probable cause to believe that the suspect has committed a crime9 involving the infliction or
threatened infliction of serious physical harm; and (3) the officer, where feasible, failed to give a
warning. Garner, 471 U.S. at 1. While the Garner test “d[oes] not establish a magical on/off
switch that triggers rigid preconditions whenever an officer’s actions constitute deadly force,”
9
Probable cause to believe a suspect has committed a crime is not the same as probable cause to
use deadly force. Garner, 471 U.S. at 9. Probable cause that a suspect has committed a crime
means “[a] reasonable ground to suspect that a person has committed or is committing a crime or
that a place contains specific items connected with a crime. Under the Fourth
Amendment, probable cause — which amounts to more than a bare suspicion but less than
evidence that would justify a conviction — must be shown before an arrest warrant or search
warrant may be issued.” BLACK’S LAW DICTIONARY 16c. (9th ed. 2009).
10
Scott v. Harris, 127 S. Ct. 1769, 1777 (2007) (citing Garner, 471 U.S. at 11), its factors are
valuable when applied to cases with facts sufficiently similar to the facts in Garner.
In a case strikingly similar to this case, the Sixth Circuit applied Garner and found no
probable cause to use deadly force against a presumably unarmed, fleeing suspect. See Bouggess
v. Mattingly, 482 F.3d 886 (6th Cir. 2007). In Mattingly, the officer was involved in a drug-sting
operation. Id. at 888. After the operation, the officer exited the vehicle, and saw suspect Michael
Newby nearby. Id. He attempted to arrest Newby, but the men struggled, and Newby broke free.
Id. at 889. The officer drew his gun and shot Newby three times. Id. Shortly thereafter, Newby
died. Id. Officers later discovered that Newby was armed; however, at no point during these
events did the officer believe Newby to be armed, and at no point did Newby draw his weapon.
Id. The court held that despite the fact that the officer had probable cause to arrest Newby, he
lacked probable cause to use deadly force to do so. Id. at 892. The court stated that “[the officer]
has offered only a hunch, a crack deal, a hand-to-hand struggle, and a ‘look in [Newby’s] eyes’
to support his claim that his choice to shoot Newby three times in the back was reasonable under
the Fourth Amendment.” Id. This was not sufficient to justify a death. Id.
On dissimilar facts, the Eleventh Circuit found probable cause for the use of deadly force
where an officer shot and killed a man suffering a psychotic episode when he attempted to flee in
a police-marked cruiser. Long v. Slaton, 508 F.3d 576, 583 (11th Cir. 2007). The court found the
behavior of a person in the middle of a psychotic breakdown to be unpredictable, and therefore
dangerous. Id. at 580–81. In addition, the court considered the vehicle a dangerous instrument,
“capable of causing death or serious bodily injury.” See id. (citing ALA. CODE § 13A-1-2(5)).
The court emphasized that “an equipped police cruiser had an even greater potential for
11
causing—either intentionally or otherwise—death or serious bodily injury.” Id. at 581. Finally, it
was significant that the officer provided a clear warning before shooting. Id. at 583.
While some cases like Slaton have found the potential for a car chase to be sufficiently
dangerous to warrant the use of deadly force,10 those cases should not govern here. At the time
officers used deadly force in those cases, the suspects had already risked the lives of others with
the nature of their flight. Scott, 550 U.S. at 375; Plumhoff, 134 S. Ct. at 2021. Here, Mr. Carter
had not yet entered a vehicle when he was shot twice. R. at 8. Mr. Carter running in the general
direction of a vehicle does not rise to the level of immediate danger that is required by the Fourth
Amendment and Garner. Additionally, in cases involving the use of a car, the dangerous aspect
is the suspect’s potential to strike others or to cause collisions. Officers can choose to avoid such
risks by disabling a suspect’s vehicle. Cf. Flores v. City of Palacios, 381 F.3d 391, 401–02 (5th
Cir. 2004). Only where this is simply not an option does the suspect’s use of an escape vehicle
create immediate danger sufficient to warrant taking a life.
Here, Federal Agent Holder—presumably a trained marksmen—had ample opportunity to
aim at the tires of Mr. Carter’s car, rather than aiming at Mr. Carter himself. Agent Holder did
not make that decision. R. at 8. Accordingly, the government should not be allowed to hide
behind the need for public safety in justifying Agent Holder’s failure to choose a reasonably
available, less deadly alternative.
Additionally, at the time that Carter was shot, his only crime was resisting arrest. R. at 8. He
was actively retreating. Id. If a burglar’s nighttime entry into a private, occupied home did not
10
See, e.g., Scott v. Harris, 550 U.S. 372, 375 (2007) (deadly force warranted where a suspect
sped down a two-lane road at speeds exceeding eighty-five miles per hour); Plumhoff v. Rickard,
134 S. Ct. 2012, 2021 (2014) (driver’s flight posed a grave “public safety risk” when he led
police officers on a high-speed car chase, and when he accelerated into a patrol car).
12
warrant the use of deadly force in Garner, a man running away, down a public street in broad
daylight certainly does not. Compare Garner, 471 U.S. at 11, with R. at 8. Similar to Garner,
there was no reason in this case to conclude that the fleeing suspect was armed. R. at 8. While
Mr. Carter did put his hand in his pocket, that alone cannot justify shooting him. See
Hickenbottom v. Nassan, 2007 U.S. Dist. LEXIS 24336, at *93 (W.D. Pa. Mar. 30, 2007)
(relying on Garner to find it unreasonable for officers to believe a fleeing suspect was armed
when he put his hand in his pocket and concealed it from the officers’ sight). Finally, unlike the
officer in Slaton, Agent Holder gave no warning before shooting Mr. Carter. R. at 8.
This case is even more compelling for a finding of no probable cause than Garner and
Mattingly, because unlike the defendants there, Mr. Carter’s only crime was resisting arrest. R. at
8. Mr. Carter did not threaten anyone, including Agent Holder, in any way. R. at 8. While it is
true that circumstances often make time to think short, it is not true that these circumstances
made that time nonexistent. The decision to take a life should be a last resort. Here, it certainly
was not the only way to prevent Mr. Carter’s escape.
Further, recent events compel this Court to consider the policies underlying the use of deadly
force—most notably, the Michael Brown shooting in Ferguson, Missouri. The Michael Brown
shooting has spurred civil unrest as reports indicate that Brown was stopped for simply walking
down the middle of the street and was raising his arms at the time that Officer Darren Wilson
fired six shots at Brown. Additionally, the Court will not be hard-pressed to find more clear
examples of racial discrimination leading to the deaths of unarmed black men at the hands of
police. The ACLU recently released an article titled, “Ferguson is Everytown, U.S.A.,”11 which
11
Nusrat Choudhury, Ferguson is Everytown, U.S.A., ACLU RACIAL JUSTICE PROGRAM (Aug.
18, 2014, 5:07 PM), https://www.aclu.org/blog/racial-justice-criminal-law-reform-freespeech/ferguson-everytown-usa.
13
explains this phenomenon in graphic detail. The article creates a list of five other incidents this
year in which officers racially profiled young black men and shot them to death with little to no
evidence of criminal activity. Id. The list, chronologically, is as follows:

In April, a white police officer shot and killed Dontre Hamilton in downtown
Milwaukee. An eyewitness reported Hamilton “holding the officer’s own
baton in a defense posture.” The officer “lunged” at Hamilton in an attempt to
get the baton, but failed. The officer shot Hamilton ten times in quick
succession. The officer gave no verbal warnings. The eyewitness reported that
Hamilton never used the baton as anything but a defensive mechanism.

In July, officers killed Eric Garner in New York. Officers placed Eric in a
chokehold—a banned tactic by NYPD—and slammed his head into a
sidewalk. Eric was allegedly guilty of selling illegal cigarettes.

In early August, police fatally shot John Crawford III in a Walmart in rural
Ohio after Crawford picked up a BB gun from a store shelf.

Days after the Brown shooting, LAPD killed Ezell Ford on a sidewalk during
an investigative stop. Ezell’s mother reports that he was lying on the ground
complying with the officer’s order when he was shot three times in the back.

The next day, police killed Dante Parker after repeatedly shocking him with a
stun gun in an attempt to arrest him as a suspect in a nearby robbery. Police
suspected him because he was riding a bicycle, and the robbery suspect was
reported to have fled on a bike.
Id. These are real stories. A few things are true of each of these victims: none were involved in
the commission of a violent crime, none were armed, and all were black. Id. It is true that “[t]he
test of reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application.” Graham v. Connor, 109 S. Ct. 1865, 1872 (1989). But it is not true that
this standard is completely undefined. The Court must regulate the use of deadly force or
tragedies like these will inevitably continue to occur. The stories above illustrate that racism
permeates the attitude of law enforcement. Police cannot be given license to shoot unarmed men
because they are black and because those individual officers have internalized perceptions about
14
race. Instead, deadly force is reasonable only where the importance of government interests
justifying the intrusion outweighs the nature and quality of the constitutional violation. United
States v. Place, 462 U.S. 696, 703 (1983). No search or seizure is more intrusive than those
involving deadly force. And the government has no interest in dishonest, race-based law
enforcement. “It is not better that all felony suspects die than that they escape.” Garner, 471 U.S.
at 11. The Fourth Amendment provides the control to prevent the inappropriate, racially-based
use of deadly force. This Court must reinforce those constitutional protections by applying the
Fourth Amendment to this case and reversing the Thirteenth Circuit on this point.
C. The ATF Forced Mr. Carter to Abandon His Backpack and Seized Evidence
Against Him as a Direct Result of that Unlawful Action.
Evidence that the government obtained as a direct result of its unlawful seizure of Mr. Carter
must be excluded. See Wong Sun v. United States, 371 U.S. 471, 486 (1963). The analysis does
not assess whether evidence would not have been found but-for the government’s illegal action.
Id. at 487–88. Instead, the exclusionary rule requires that evidence be suppressed where it is
obtained as a direct result of the illegal action. Id. at 488.
The Court has identified the “general factors” that should be considered in determining that
the police discovered evidence as a direct result of an unlawful invasion: (1) the defendant did
not abandon the evidence as an act of free will; (2) there is temporal proximity of the illegal
seizure to the discovery of the evidence; (3) there are few intervening circumstances; and (4) the
purpose and flagrancy of the police conduct. See Brown v. Illinois, 422 U.S. 590, 603–04 (1975).
In sum, the abandonment of Mr. Carter’s backpack must be “sufficiently an act of free will to
purge the primary taint” of the evidence. Id. at 602 (internal quotations omitted).
Applied to this case, these factors require suppression of the contents of Mr. Carter’s
backpack. First, Mr. Carter did not willingly abandon his backpack; he did so only out of
15
necessity. Mr. Carter’s actions illustrate this point: he left the car keys in the ignition despite the
fact that the car was still operable and had ample gas. R. at 8. Considering Mr. Carter’s limited
economic means, he would not have freely abandoned property as valuable as a car.
Further, it is unlikely that Mr. Carter was able—having lost so much blood— to freely take
himself to the hospital. It is much more likely that due to a lack of blood, Mr. Carter passed out,
crashed his car, and a passerby, seeing the crashed car and unconscious driver, called 911,
resulting in an ambulance transporting Mr. Carter to the hospital. In fact, the driver of the vehicle
made no effort to avoid crashing,12 R. at 9, which makes sense if the driver was unconscious.
Someone else must have taken Mr. Carter to the hospital. The abandonment of his property was
not an act of free will.
Second, not enough time passed to cure the taint of the unlawful seizure. The record indicates
that only five hours passed between the unlawful seizure (the 10:30 a.m. shooting) and
discovering the evidence (3:45 p.m.). R. at 6–8. The unlawful seizure continued affecting Mr.
Carter’s actions well beyond the five-hour mark. In fact, at 3:45 p.m., Mr. Carter was likely
dying, and probably would have died but-for the medical surgery. See R. at 9. He could not have
recovered his property. Id. Thus, the time between the unlawful seizure and the discovery of the
evidence did not make its use lawful.
Third, the only intervening circumstance was Mr. Carter getting into his car and driving away.
R at 8. Despite Mr. Carter’s attempt to leave, the police had no difficulty finding the evidence. It
was within a mile of the shooting. R. at 8. And his car was unlocked and in plain sight. Id. The
act of driving away did not interfere with the government’s ability to find this evidence.
12
A collision reconstructionist found that the driver made no effort to brake or turn. R. at 9.
16
Finally, the Court should consider the flagrancy of the ATF’s conduct. The agents could have
easily killed Mr. Carter. In fact, it is not unreasonable to assume they intended to do so. The law
cannot allow officers to freely kill unarmed suspects at their will simply for fleeing.
Additionally, these facts should not be considered in a vacuum from the ATF’s other actions in
this case. The creation and execution of a reverse-sting was outrageous government conduct that
resulted in several deaths and the paralysis of a federal agent. R. at 8. Taken together, the
flagrant actions of the ATF overwhelmingly satisfy the Wong Sun standard for exclusion.
In addition, the policy of the exclusionary rule requires suppression of this evidence. As
stated in Brown: “[t]he rule is calculated to prevent, not to repair. Its purpose is to deter, to
compel respect for the constitutional guaranty in the only effectively available way, by removing
the incentive to disregard it.” Brown, 422 U.S. at 599–600. The officers in this case disregarded
the Fourth Amendment. They allowed their own internalized perceptions about the race and
appearance of Mr. Carter to govern their decision-making process. Mr. Carter was not armed. R.
at 8. He was not dangerous. See id. But Agent Holder still shot him. Id. As a direct result, the
ATF unlawfully seized evidence it now seeks to use against Mr. Carter. This is precisely the type
of conduct the exclusionary rule is designed to prevent. Without application of the rule, the
constitutional protections of the Fourth Amendment will have no effect on this case. Suppressing
the evidence deters the government’s unlawful actions, and denounces senseless violence and
death like that of the Michal Brown shooting. Accordingly, the rule must be applied, the
evidence must be excluded, and Mr. Carter’s Motion to Suppress must be granted.
II.
DUE PROCESS SHIELDS CITIZENS FROM OUTRAGEOUS GOVERNMENT CONDUCT
SUCH AS THE ATF’S CREATION OF CRIMES DESIGNED SOLELY TO OBTAIN
CONVICTIONS AND ITS VIOLENT DISREGARD OF THE FOURTH AMENDMENT.
The Thirteenth Circuit erred by not dismissing Defendants’ indictments. The Due Process
17
Clause guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due
process of law.” U.S. CONST. amend. V. This guarantee empowers the judiciary to dismiss
indictments under the outrageous government conduct defense. FED. R. CRIM. P. 12(b)(1); See
United States v. Russell, 411 U.S. 423, 431–32 (1973). The defense provides essential limitations
on government conduct. See United States v. Dyke, 718 F.3d 1282, 1287 (10th Cir. 2013).
A. The Outrageous Government Conduct Defense Is an Essential Constitutional
Safeguard that Empowers Courts with Discretion to Regulate Law Enforcement.
This Court should explicitly recognize the outrageous government conduct defense. This
constitutional safeguard shields defendants from conduct “so outrageous that due process
principles would absolutely bar the government from invoking judicial processes to obtain a
conviction.” Russell, 411 U.S. at 431–32. On multiple occasions the Court has recognized the
defense’s importance without formally adopting it. See, e.g., Moran v. Burbine, 475 U.S. 412,
432 (1986); Hampton v. United States, 425 U.S. 484 (1976) (plurality opinion) (affirming the
defense as a distinct due process right). Additionally, the circuit courts have almost uniformly
seized upon the defense, with all but two applying it in some fashion. Compare United States v.
Mosley, 965 F.2d 906, 909 (10th Cir. 1992) (collecting cases), with United States v. Boyd, 55
F.3d 239, 241 (7th Cir. 1995), and United States v. Tucker, 28 F.3d 1420, 1424–25 (6th Cir.
1994). All that remains is for this Court to explicitly recognize the defense.
The constitutional right to due process mandates that the defense exist. See Russell, 411 U.S.
at 431. Otherwise, defendants would be left with the sole, inadequate, statutory remedy of the
entrapment defense.13 See Hampton, 425 U.S. at 490; Stephen A. Miller, Comment, The Case for
13
Entrapment is “the conception and planning of an offense by an officer, and his procurement
of its commission by one who would not have perpetrated it except for the trickery, persuasion,
or fraud of the officer.” Sorrells v. United States, 287 U.S. 425, 452 (1932) (Roberts, J., separate
18
Preserving the Outrageous Government Conduct Defense, 91 NW. U. L. REV. 305, 330 (1996).
Despite the availability of the entrapment defense, rejecting the outrageous government
conduct defense in favor of entrapment raises three concerns. First, the entrapment defense is too
narrow. It applies only to criminal designs implanted in the defendant’s mind by the government;
whereas the outrageous government conduct defense shields against all forms of improper
government conduct, such as a Fourth Amendment violation. See, e.g., Rochin v. California, 342
U.S. 165, 172 (1952). Second, entrapment hinges upon a defendant’s lack of predisposition to
commit a crime. A five-justice majority in Hampton found such a defense inadequate, and held
that due process supported a bar to conviction regardless of predisposition. Hampton, 425 U.S. at
495 (Powell, J., concurring); Id. at 497 (Brennan, J., dissenting). Finally, the entrapment defense
is statutory, and may be legislatively withdrawn at any time. Dyke, 718 F.3d at 1287. In contrast,
the outrageous government conduct defense is constitutional, and may not be repealed.
Also, because the outrageous government conduct defense is constitutionally based, it does
not violate separation of powers. Opponents argue that the defense allows the judiciary to
encroach on the executive’s power to enforce the law. Tucker, 28 F.3d at 1424–25. But in fact,
safeguarding a defendant’s due process rights is a judicial duty, not, as the State might propose, a
“chancellor’s foot veto” interfering with the executive branch. See Russell, 411 U.S. at 435.
Further, the outrageous government conduct defense does not violate separation of powers
because either (1) the conduct is not so outrageous as to bar conviction, meaning the judiciary
will not act; or (2) the conduct is outrageous, and due process requires dismissal of the
indictment. See United States v. Jannotti, 673 F.2d 578, 609 (3d Cir. 1982) (en banc).
Additionally, the defense’s rare application limits judicial interference with law enforcement. See
opinion). The entrapment defense is the judicial assumption that Congress did not intend to allow
criminal punishment for crimes induced by the government. Russell, 411 U.S. at 435.
19
Tucker, 28 F.3d at 1424. Enforcing due process guarantees does not violate separation of powers.
The outrageous government conduct defense is essential. Without it, defendants’ only
recourse is a narrowly defined statutory remedy. The defense empowers courts with discretion to
regulate law enforcement. Thus, this Court should explicitly recognize the defense.
B. The ATF’s Practice of Creating Reverse-Stings for the Sole Purpose of
Obtaining Convictions is Outrageous Government Conduct.
After recognizing the outrageous government conduct defense, this Court should apply it to
dismiss the indictments. The ATF’s conduct was outrageous for three reasons. First, it initiated
the reverse-sting by targeting poor, young, black men with no known criminal history. Second, it
coercively recruited them with promises of an enormous payday. Third, it encouraged the
ensnared Defendants’ conduct and required them to recruit more individuals before arresting
them. Such conduct violates fundamental principles of fairness and shocks the universal sense of
justice. See Russell, 411 U.S. at 432. While the Thirteenth Circuit correctly noted that the
standard for outrageous government conduct is very strict, R. at 29, such conduct must only go a
“fraction too far” before tipping from acceptable to outrageous. See United State v. Black, 733
F.3d 294, 311 (9th Cir. 2013) (Black I). Here, the government has gone too far.
Government conduct is outrageous when the government creates a crime for the sole purpose
of obtaining convictions. See, e.g., United States v. Pitt, 193 F.3d 751, 760–61 (3d Cir. 1999).
This type of due process inquiry is a totality of the circumstances determination. Black I, 733
F.3d at 304. Five factors address government conduct from initiation to conviction while
considering the nature of crime to be prevented. These factors indicate outrageous conduct when:
(1)
The government invents a crime—it does not infiltrate an existing criminal operation;
(2)
The government targets the defendants randomly rather than selecting them because
of their criminal characteristics or propensity;
20
(3)
The government participates in and encourages the criminal conduct;
(4)
The government uses coercion, violence, or brutality; and
(5)
The nature of the crime to be prevented does not necessitate the government’s
questionable conduct.14
The sole purpose of reverse-stings is obtaining convictions. At initiation, the government not
only invents the crime (factor 1 but also arbitrarily trolls to recruit random defendants (factor 2).
See, e.g., Black I, 733 F.3d at 302–03. Post-initiation, it uses economic coercion in the form of
substantial monetary gain to encourage the criminal conduct (factor 3, 4). See id.; Dyke, 718 F.3d
at 1284. Finally, reverse-stings—designed to decrease violence—lead to the injuries and deaths
of suspects, federal agents, and innocent bystanders (factor 5). R. at 3.
1. Reverse-stings force convictions based on class or race, not criminal history.
Reverse-stings violate due process at the initiation stage by recruiting through “random”
targeting. This random targeting is particularly violative of due process rights when it is
inherently discriminatory. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Targeting focused on
the “bad part of town” generates random convictions of defendants with low socio-economic
status. United States v. Black, 750 F.3d 1053, 1055 (9th Cir. 2014) (Reinhardt, J., dissenting
from denial of rehearing en banc) (Black II). These defendants are usually minorities. See id. In
fact, a district court judge in Chicago recently denounced reverse-stings as racially
discriminatory. See United States v. Brown, (N.D. Ill. 2013) (Castillo, J.) (Discovery Order)
(identifying 17 reverse-stings since 2011 with 26 defendants: 19 Black, 7 Latino, and 0 White).
In addition, such targeting fails to generate convictions of known or suspected criminals.
14
Black I, 733 F.3d at 309 (factors 1, 2, 3, and 5); Dyke, 718 F.3d at 1284 (factors 1, 2, and 4);
United States v. Bout, 731 F.3d 233, 238 (2d Cir. 2013) (factor 4); United States v. Posada
Carriles, 541 F.3d 344, 361 (5th Cir. 2008) (factors 1 and 3); United States v. Lard, 734 F.2d
1290, 1296 (8th Cir. 1984) (factors 1 and 5); United States v. Gardner, 658 F. Supp. 1573, 1576–
77 (W.D. Pa. 1987) (factors 1, 2, and 5).
21
Black II, 750 F.3d at 1055. This is because random targeting does not focus on criminal history
at all. Instead, it blindly directs law enforcement initiatives toward entire communities. Caught in
the cross-fire are poor, young, black men who are highly susceptible to economic coercion.
2. Reverse-stings force convictions by coercing and encouraging defendants to
commit crimes.
Reverse-stings also violate due process post-initiation when the government actively coerces
and encourages criminal conduct. See Posada Carriles, 541 F.3d at 361. Coercion and
encouragement occurs in two ways: (1) the government presents defendants with large monetary
enticements; and (2) it plays a primary role in the crime. Cf. United States v. Dion, 762 F.2d 674,
689 (8th Cir. 1985). First, economic coercion is inherent in ATF reverse-sting operations. This is
because reverse-stings target low income neighborhoods more susceptible to economic coercion.
Black II, 750 F.3d at 1058. Such tactics not only entice defendants during recruitment, but also
encourage continued involvement. For example, in Hudson, the government enticed the
defendants with a CI’s promise of a good “come up”: twenty five kilograms of pure cocaine.
United States v. Hudson, 3 F. Supp. 3d 772 (C.D. Cal. 2014). The defendants were hooked and
could not back out. Id. The court found their willingness to remain involved in the criminal
operation was “just as consistent with . . . being ‘broke’ and in need of cash as it [was] with his
‘propensity to commit robberies.’” See id.
Economic coercion also pressures defendants to wildly boast about unrelated prior criminal
histories to establish credibility with undercover agents. Some courts find that these post hoc
admissions mitigate concerns with the random targeting because admissions demonstrate
criminal propensity. See, e.g., Black I, 733 F.3d at 307. But this argument fails to note that such
boasts are unreliable. Economic coercion incentivizes defendants to inflate their criminal
histories to seem more experienced. “The Government cannot bootstrap this post hoc knowledge
22
to justify the scheme from the beginning.” Hudson, 3 F. Supp. 3d 772 (C.D. Cal. 2014).
Second, reverse-stings require government over-involvement that encourages and enables
criminal conduct. The duration, nature, and necessity of ATF involvement demonstrate that it
sets and dictates the criminal plans. See Black I, 733 F.3d at 308. As duration of ATF
participation increases, it becomes apparent that the ATF’s sole focus is obtaining convictions.
Id. The nature of an agent’s participation makes him “a partner in the criminal activity,” rather
than an “observer,” as he offers assurances and suggestions. See id. And ATF involvement is
necessary when the defendants could not commit the crime without ATF intervention. Id.
Hudson and Black I are illustrative. In Hudson, ATF involvement lasted more than two
months. Hudson, 3 F. Supp. 3d 772. The agent was a partner in the criminal activity: he was the
robbery’s inside man, provided the getaway van, putative stash house, and most importantly the
“fictitious components” of the operation. Id. Additionally, the agent’s input was necessary to
complete the robbery because, without him, there would be no “robbery to begin with and no
need for guns or extra associates.” Id. As a result, the Hudson court found outrageous
government conduct. In contrast, in Black I, the government involvement lasted approximately
two weeks. Black I, 733 F.3d at 299–301. The agent “provided no weapons, plans, manpower, or
direction about how to perform the robbery.” Id. at 309. And the court did not find the agent’s
involvement necessary for defendants to commit the crime. Id.
3. The ATF randomly recruited from the worst part of the city, and then coerced
and encouraged defendants to commit crimes solely to obtain convictions.
In this case, at the initiation stage, the ATF randomly targeted its recruiting at defendants in
the “worst part of the city,” R. at 4, effectively targeting defendants on the basis of class and
race. See Black I, 733 F.3d at 299. The recruited defendants were minorities with no known
criminal history and high susceptibility to economic coercion. Both Mr. Price and Mr. Jones are
23
black, have no prior felonies, and are unemployed or work for minimum-wage. R. at 34.
Post-initiation, the ATF coerced and encouraged the defendants to commit the reverse-sting.
Similar to conduct in Hudson, a CI approached Mr. Price with promises of a good “come up”:
$500,000 in cocaine. See 3 F. Supp. 3d 772; R. at 4–5. This monetary enticement not only
ensnared the defendants but also encouraged them to continue their involvement in the crime.
Defendants made unreliable boasts about past criminal acts. See R. at 42, Ex. C3. But these
boasts were results of coercive pressure, and thus do not mitigate the ATF’s outrageous conduct.
Further, the duration, nature, and necessity of ATF involvement demonstrates that it set and
dictated the criminal plans. Here the reverse-sting operation lasted almost a month, twice as long
as the approximate two weeks in Black I. See 733 F.3d at 299–301. The nature of Miller’s
involvement made him a partner in the criminal activity. Similar to the ATF agent in Hudson,
Miller was the inside man, offered to obtain a getaway car and safe house, and provided the
entire robbery scheme, including its fictional components. See 3 F. Supp. 3d 772. And unlike the
agent in Black I, Miller’s involvement was necessary for the Defendants to commit the crime.
See 733 F.3d at 309. He was the “key into the house,” and without him, there would have been
no robbery, no need for guns, and no need for extra associates. This shows that the sole purpose
of the ATF’s reverse-sting was obtaining convictions. This was outrageous government conduct.
Finally, reverse-stings are not justified. They are a product of the war on drugs, created to
reduce the sale and use of illegal drugs and to minimize violence. See United States v. Kindle,
698 F.3d 401, 416 (7th Cir. 2012), reh’g en banc granted, opinion vacated (Jan. 16, 2013).
Reverse-stings do not accomplish these goals. Instead, they incite violence and fail to deter
illegal drug sales. See id. (arguing that reverse-stings promote demand for illegal drugs by
lowering drug dealers’ protection costs); R. at 3 (“[T]he stings have led to the injuries and deaths
24
of suspects, federal agents, and innocent bystanders.”). As such, the ATF should not be allowed
to justify its outrageous conduct by relying on the alleged value of reverse-stings.
C. Shooting Two Unarmed Men in Violation of the Fourth Amendment Is Also
Outrageous Government Conduct.
This Court has found violence that disregards the Fourth Amendment to be the quintessential
example of outrageous government conduct. See, e.g., Rochin 342 U.S. at 172. Outrageous
government conduct analyses consider the government’s “operation as a whole.” Black I, 733
F.3d at 307 n.11. Thus, even if the Court does not find the reverse-sting itself to be outrageous, it
must also consider the unconstitutional shootings of Mr. Roby and Mr. Carter. Violence is a
highly important factor in determining outrageousness. Even the narrowest versions of the
defense find outrageous government conduct when violence or brutality is used in the
investigation. See, e.g., Bout, 731 F.3d at 238. The goal of reverse-stings is to safely capture
stash-house robbers with minimal violence, Black I, 733 F.3d at 309, but reverse-stings actually
create violence. Here, the reverse-sting left three suspects dead, three with serious injuries, and
one federal agent paralyzed. R. at 25. Shooting Mr. Roby and Mr. Carter violated their Fourth
Amendment rights, and is the exact kind of violence that this Court has found unacceptable in
the past. See, e.g., Rochin, 342 U.S. at 172. Thus, this Court should dismiss the indictments.
CONCLUSION
The government ensnared defendants in a fictitious criminal operation and used unreasonable
deadly force in discriminating against defendants on the basis of their race. These actions
violated the Fourth and Fifth Amendments. Accordingly, the contents of Mr. Carter’s backpack
must be suppressed. All indictments must be dismissed.
25
APPENDIX A: THE FOURTH AMENDMENT
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. U.S. CONST. amend. IV.
a.
APPENDIX B: THE FIFTH AMENDMENT
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation. U.S. CONST. amend. V.
b.