Court Decision Could Force Changes To ATF's Undercover Operations

Dec 15, 2017
Originally published on February 1, 2018 2:00 pm

On Friday, nine federal judges in Chicago will continue a rare joint hearing to decide whether discrimination is the reason why U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives agents stage phony drug stash house stings in mostly black neighborhoods in Chicago.

The judges decided to get together instead of hearing 12 cases they were overseeing separately.

One attorney says while he's never seen anything like the judges' panel before, the phony drug stash house sting operation aimed at suspects is not new.

"I come to you as an ATF undercover agent or a confidential informant and I say, 'Here's this house which has a lot of drugs in it and boy you can get a lot of these drugs but you need to get guns and you need to get guys together to go rob the house,'" Chicago Kent Law professor and practicing attorney Richard Kling said outside the courtroom on Thursday.

The drug stash house doesn't exist, however, and the suspects — some with only minor criminal backgrounds — who get caught up in the sting end up charged and convicted of armed robbery and other crimes. Defense attorneys are arguing racial bias and want the indictments of more than 40 defendants tossed. During the hearing, some of the people caught in these stings are watching the proceedings from the courtroom jury box.

David Flowers, an African-American who was charged along with his brother, says the ATF definitely lures people in the city's black neighborhoods.

"I think they can get into any community they want to, if they chose to," he says, "but because it was so easy in the urban community, that's where they stayed."

It's easy, Flowers says, because agents dangle the prospect of an opportunity to poor often desperate individuals to pocket thousands of dollars.

Columbia Law School Professor Jeffrey Fagan says his research finds nearly zero percent probability that the ATF stings' racial disparities are by chance.

But, the government's expert witness, Northwestern University Law Schools' Max Schanzenbach, has a different interpretation of Fagan's study. Calling the data faulty and overly broad, he says its designed to show racial disparity when there is none.

The judges may issue separate rulings or a single one sometime early next year.

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DAVID GREENE, HOST:

Today, nine federal judges in Chicago will continue a rare joint hearing. It's being held to determine whether race is a factor in phony drug stings created by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. What these judges decide could determine whether the ATF changes the way it conducts its undercover operations. Here's NPR's Cheryl Corley.

CHERYL CORLEY, BYLINE: The nine judges decided to get together instead of hearing 12 cases they were overseeing separately because defense attorneys claim racial bias in all of them. Now those judges will decide whether discrimination is a reason why federal agents stage phony drug stash house stings in mostly black neighborhoods in Chicago.

Chicago-Kent Law professor and practicing attorney Richard Kling said, outside the courtroom, he's never seen anything quite like it.

RICHARD KLING: Never in 46 years.

CORLEY: While the nine-judge panel may be the first of its kind, Kling says the ATF phony drug stash house sting operation aimed at suspects is not.

KLING: They come to you as an ATF undercover agent or a confidential informant and they say, here's this house which has a lot of drugs in it. And, boy, you can get a lot of these drugs. But you need to get guns, and you need to get guys together to rob the house.

CORLEY: But the drug stash house doesn't exist and neither do the drugs. But the suspects - some with only minor criminal backgrounds - who get caught up in the sting get charged and convicted of armed robbery and other charges. During the hearing, some of them observe from the courtroom jury box. The sting operation is controversial. And the defense attorneys charging racial bias want the indictments of the more than 40 defendants tossed.

The court hearing features two dueling experts. Columbia Law School professor Jeffrey Fagan says his research finds nearly 0 percent probability that the ATF stings' racial disparities are by chance. And David Flowers, an African-American who was charged along with his brother, says the ATF definitely lures people in the city's black neighborhoods.

DAVID FLOWERS: I think they can get into any community they want to, if they chose to, but because it was so easy in an urban community, that's where they stayed.

CORLEY: Easy, he says, because agents dangle the prospect of an opportunity to poor, often desperate individuals to pocket thousands of dollars. The government's expert witness, Northwestern University Law School's Max Schanzenbach, has a different interpretation of Fagan's study, calling the data faulty and overly broad. He says it's designed to show racial disparity when there is none. His testimony continues today. The judges may issue separate rulings or a single one sometime early next year. Cheryl Corley, NPR News, Chicago.

(SOUNDBITE OF BLACK MILK'S "GREY FOR SUMMER") Transcript provided by NPR, Copyright NPR.