Federal Criminal Justice Clinic Moves to Dismiss Cases because ATF Discriminated on the Basis of Race

The Federal Criminal Justice Clinic has filed Motions to Dismiss for Racially Selective Law Enforcement in 10 federal criminal cases in Chicago, on behalf of approximately 40 indigent defendants. The Clinic has joined with the Federal Defender Program and Federal CJA Panel attorneys to allege that the ATF unconstitutionally discriminated on the basis of race in targeting almost exclusively people of color for its fake stash house cases, in violation of Equal Protection principles.

The motions rely on a Report by Professor Jeffrey Fagan that rules out race-neutral explanations for the ATF’s decisions, leading to the conclusion that the agency selected the stash house defendants based on their race. Professor Fagan was the expert in the New York City case where a federal judge found the New York Police Department’s stop-and-frisk practices unconstitutional.

The motions’ claim of intentional discrimination also rests on evidence that the ATF did not follow its own internal criteria when it targeted Black individuals for this kind of case, but scrupulously followed its criteria in the few instances when it went after White individuals. In addition, there is evidence that non-Black ATF agents expressly recruited Black targets on the basis of race.

The motions and supporting evidence, including Professor Fagan’s Report, are available here:

Expert Report of Professor Jeffrey Fagan

The Clinic’s litigation is in the national news:

Brad Heath, “ATF Drug Stings Targeted Minorities, Report Finds,” USA Today (Sept. 23, 2016)

“A new report has found “strong, consistent and statistically significant” evidence that federal gun agents singled out minorities for controversial drug stings in Chicago.

The stings had been a centerpiece of efforts by the Bureau of Alcohol, Tobacco, Firearms and Explosives to target violent crime. Agents lured suspects with the promise of a huge payday for robbing a drug “stash house” that did not actually exist, then left them facing long prison sentences for plotting to resell the imaginary drugs. . . .

ATF agents operating around Chicago have arrested 94 people in the undercover stings since 2006; 91% were either black or Hispanic. . . . The new report, prepared by Columbia Law School professor Jeffrey Fagan, found only a 0.1% chance that agents could have selected so many minorities by chance, even if they were targeting only people with criminal records that suggested they were likely to be part of a robbery crew, as ATF policies require. Those results, Fagan wrote, show that “the ATF is discriminating on the basis of race” in choosing targets for the stings. . . .

The report was filed alongside motions by a University of Chicago legal clinic to dismiss federal charges in three ATF sting cases because agents intentionally targeted minorities. That request also accuses the agency of violating its internal rules for conducting the sting when agents targeted black and Hispanic suspects, but not when they targeted whites. Defense lawyers in seven other sting cases said they anticipate that similar requests will be filed to drop the charges against their clients as well, an unusually broad challenge to federal law enforcement tactics.”