Police, The Fourth Amendment, Qualified Immunity

Entrapment is not a Constitutional violation at least in the Ninth Circuit

with one comment

Case: AKSU v. County of Contra Costa, Dist. Court, ND California 2015

What happened: A policeman and a private detective set up an entrapment scheme where the private detective would take a targeted individual out drinking at a bar on false pretenses (for example, to interview the target for an article), and then have the policeman arrest the target for intoxicated driving when he drove away from the bar. It should be noted here that the entrapment was clear, and that the two plaintiffs escaped criminal liability due to the entrapment defense. Plaintiffs then sued the policeman civilly for the entrapment.

Decision: Entrapment is not a Constitutional violation. “[A precedential decision] in fact held that ‘probable cause for arrest is not nullified by the fact that the otherwise successful investigation was maliciously inspired.’ Until and unless the Ninth Circuit holds that entrapment negates probable cause, this Court’s hands are tied. There was probable cause here.”

Criticism: I don’t see how blatant entrapment meets the “reasonableness” requirement of 4A given its longstanding status as an inappropriate police tactic. Perhaps there are cases of borderline entrapment (for example, lost wallet schemes) where the entrapment is not clear and no civil liability would exist. However, where the entrapment is as blatant as it was in this case, it does not strike me that a reasonable judge could find the entrapment to be “reasonable” as that term is used in the Fourth Amendment.

Comment: This opens the door to police setting up entrapment type enforcement squads where they never intend to charge the target, but merely want to punish targets with arrest, search and civil forfeiture.

Written by Burgers Allday

May 18, 2015 at 3:43 am

Posted in Uncategorized

One Response

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  1. I guess i understand why a court might say that there actually was probable cause, but even if it isn’t a 4th amdt violation, isn’t it a substantive due process violation, like planting evidence?

    Bill O'Brien

    May 20, 2015 at 9:19 am

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