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Fake Drug Stings Targeting Blacks And Latinos Scheduled For Hearings

By Starla Muhammad -Managing Editor- | Last updated: Mar 22, 2017 - 10:03:01 AM

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Attorneys representing dozens of Black and Latino male defendants charged in federal drug conspiracy and gun cases, after being snared in fake drug house sting operations, are heading to federal court early next month in a battle to have the charges dismissed.

The attorneys argue their clients were set up and targeted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) because of their race. They are using a comprehensive report that contains damning accusations—including how the agency demonstrated a “pattern of selective enforcement” targeting Blacks and Latinos during bogus sting operations. The Justice Department denies the charge. (See previous coverage of this story in Final Call Vol. 36 No. 1).

Status hearings are scheduled for April 5 at the Everett M. Dirksen building in U.S. District Court for the Northern District of Illinois Eastern Division in downtown Chicago.

Katie Tinto, assistant clinical professor of law and director of the Criminal Justice Clinic at UC Irvine School of Law

The hearings deserve attention for two critical reasons, said Katie Tinto, assistant clinical professor of law and director of the Criminal Justice Clinic at UC Irvine School of Law. One, she said, the cases bring national attention to a nationwide tactic used by ATF for years. The result has been thousands of defendants in prison who were caught using this sting and related stings by police departments across the country, Ms. Tinto noted.

“The second reason I think these cases are important is that we’re discussing the issue of whether the police, whether law enforcement, is discriminating on the basis of race. That is the critical question not only in the context of these stings, but it is a large question about how we police and how we catch people in our country today. This is a question about race and policing which is extremely critical,” she added.

In Chicago, over a period of years young men were recruited by ATF informants and agents and convinced to rob drug houses with hopes of making quick money. However, the drug houses nor the drugs ever existed. They were arrested and charged with federal crimes that come with long prison sentences.

Professor Jeffrey Fagan, a law and epidemiology professor at Columbia Law School and senior research scholar at Yale Law School

“From 2011-2013, the selection of only one White defendant among the 57 Stash House defendants recruited in that period suggests that Black and Hispanic persons were targeted for selection by the ATF,” noted the report authored by Professor Jeffrey Fagan, a law and epidemiology professor at Columbia Law School and senior research scholar at Yale Law School.

Of 94 sting targets in Chicago, eight were White, 12 Latino and 74 were Black. Activists argue the phony drug stings do not deter crime, but instead foster and create more criminals or influence criminal behavior.

Dr. Tyrone Powers, a former FBI agent and an author of “Eyes to My Soul: The Rise or Decline of a Black FBI Agent,” said it is easier to conduct these types of aggressive police operations in communities of color.

The drugs and guns often used in these set ups are from stashes recycled from previous busts and end up right back on the streets instead of being burned or destroyed, he said.

“I will say this to you and I think other agents if they’re honest would say this too. If we were able to monitor that process we could reduce the drugs on the street by 50 percent without all these outrageous raids which are statistics driven, targeted at communities which they think are easy to investigate and they will get less pushback from,” said Dr. Powers.

It is also easier for law enforcement agencies to recruit more informants in poor Black and Latino communities because people are desperate for money, he continued.

The ATF also ignored guidelines that were supposed to be implemented in its stash house stings. Each of the 24 cases reviewed in the report included use of the same or similar tactics. But the cases did not comply with ATF internal guidelines for identifying criminals prone to commit violent crimes—and therefore legitimate targets for drug stings.

Prof. Tinto said the Fagan report stood out because it found those targeted as suspects and who eventually were arrested, charged and became defendants “could not have happened by chance.”

“I also found it striking that the criminal history of many of the defendants didn’t match with many of the ATF’s own internal policies about who they were trying to target. I thought that despite claims of a focused investigation, who they eventually got and kind of ensnared in this thing was a much broader category of people in terms of their background,” she added.

Dr. Powers agreed. Bogus suspect targeting does not dramatically reduce the chaos, violence and drugs on the streets, he said. Many of these types of stings are driven by statistics and publicity rather than trying to solve problems, he said.

“What they do actually create is more chaos because you have more people going to jail, more recidivism, more people being taken out of their homes and the purpose is not even true and pure,” said Dr. Powers, director of the Homeland Security and Criminal Justice Institute. The Homeland Security and Criminal Justice Institute is located at the Anne Arundel Community College School of Business and Law in Arnold, Md. Members of the institute conduct trainings, seminars and presentations on issues of law and law enforcement to various organizations nationwide.

Motions to dismiss charges for some of the men arrested and charged in Chicago were written and coordinated through the Federal Criminal Justice Clinic, which represents low income and poor defendants charged in federal crimes. The clinic is affiliated with the University of Chicago Law School. The clinic wrote motions to dismiss charges for all the cases but did not file all of the motions. It is currently handling 12 cases. Attorneys with other local law firms are representing the remaining defendants.

Thomas E. Brandon is the acting director and current head of the ATF, a post he has held since April 1, 2015. The agency falls under the authority of the U.S. Department of Justice.

Thomas E. Brandon, acting director and current head of the ATF

In its response to the motion for dismissal filed in February, a copy of which was provided to The Final Call from the U.S. Attorney’s Office for the Northern District of Illinois, the Justice Department denied racial bias was a factor in the cases. There is no statistical evidence of racial discrimination or evidence that the ATF acted with “discriminatory intent,” the department argued. The Fagan report is “riddled with flaws,” the Justice Dept. charged.

Despite the resignation earlier this month of Zachary Fardon, who was U.S. Attorney for the Northern District of Illinois, the hearings are still scheduled to take place. Joel R. Levin was appointed Acting U.S. Attorney March 11.

Among other issues to be addressed in April is the deadline by which defense attorneys will file responses to the Justice Department. Ultimately the drug cases will be presented in front of several different federal judges and it is highly probable split decisions will be reached. Appeals are virtually a guarantee so it could be some time before there is any resolution, note legal analysts. Some of the defendants are in jail while others are out on bond.

The ultimate judicial outcome could have national implications when it comes to what methods law enforcement agencies use in certain operations. Nationwide the ATF has utilized fake drug house stings to apprehend over 1,000 defendants, 80 percent had a prior criminal record but 13 percent had never been convicted of a violent crime, according to a USA Today investigation of fake stings in 2013.

U. S. Attorney Zachary Fardon speaks to reporters at the federal building in Chicago, April 27, 2016.Photo: AP/Wide World photos

The Final Call contacted the ATF Chicago Field Office for comments on the upcoming hearing. Public Information Officer and Senior Special Agent David D. Coulson responded: “With respect to the case(s) you are citing, I cannot comment based on the fact there are pending judicial activities.” Mr. Coulson did note there are approximately 30 ATF agents assigned to Chicago but said he did not know the racial breakdown of agents locally or nationally.

A 189-page report and proposal released in 2015 recommending merging the ATF with the FBI noting the “sporadic way in which the ATF’s jurisdiction has evolved” is a contributing factor in the agency’s struggle to define a coherent and manageable mission. The Center for American Progress proposal recommended the merger to help implement effective protocols and policies to adequately fulfill ATF’s mission, particularly with respect to firearms regulation and enforcement. The center, which describes itself as a nonpartisan progressive policy think tank, referenced the findings of the Fagan report.

The center also said top ATF leadership has failed to provide proper guidance to and oversight of some field agents and at times failed to adequately direct field divisions about how to fulfill their missions. The criticisms were found in the center’s report under a section titled, “The next ATF challenge: Fake storefront operations and drug stash house robberies.”

Lack of a clear role for the ATF and lack of leadership in Washington, D.C. have opened the door for questionable tactics, including the fake drug house stings, the Center for American Progress said.

Prof. Tinto said regardless of the legal outcome, the cases could impact future law enforcement strategies dealing with violent drug and weapons crimes. There has been increased attention to this type of sting from judges across the country, but Chicago defense attorneys are at the forefront of bringing a racial discrimination enforcement argument, she added.

“They’re really the only ones who have done this and done the work to bring this sort of claim so Chicago’s really at the forefront of questioning or challenging how law enforcement operates,” said Prof. Tinto.

Dr. Powers is not as optimistic. “I’ve been in this system long enough as an agent to not have a great deal of confidence and how the rulings will go because I know the courts,” he said.

But if the courts rule there was racial bias in these cases it will reverberate not only through ATF but through the other agencies like the DEA and FBI because it becomes a cost issue, he explained.

The cost associated with operating these sting operations and the man hours to carry them out would then become the focus. There is an incentive in mass arrests to get money for budgets though stings don’t solve the problems, said Dr. Powers.

“If the court comes back and says that these are inherently biased and that because of that this cannot go forward, then you will see a change in direction. Not for the good of the cause but for almost a selfish inter-agency reason that it no longer makes sense budget-wise for them to pursue these kind of cases if they’re not going anywhere.”

Attorney Abdul Arif Muhammad, general counsel for the Nation of Islam, doesn’t believe the root issues will change regardless of the legal outcome. The Honorable Minister Louis Farrakhan has spoken consistently, issued warnings and guidance to Black youth regarding the enemy’s plan contained in the Bible book of Exodus 1:9-10, Atty. Arif Muhammad told The Final Call.

This particular scripture outlines the plan of pharaoh to “deal wisely” with the children of Israel in an effort to keep them from multiplying, joining on to an enemy, throwing off the yoke of slavery and subjugation and doing for themselves. Min. Farrakhan teaches that this scripture applies to the Black man and woman of America who are the real children of Israel.

“The key phrase is ‘Come on, let us deal wisely with them … .’ This is what the story of the fake drug crimes to entrap our youth represents,” said Atty. Arif Muhammad. “If our youth continue to ignore divine guidance, we will continue to see these and other actions by a government who has targeted and branded Black youth as criminals.”