In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house. (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.) As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report. The first post covered "Sentencing Victories," and this one covers "Legal Victories":
Legal Victories
The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country. Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.
In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers. Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996). Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721. Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.
Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims. See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong. Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221. The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.
In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington. Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard. First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6. Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id. Sellers thus significantly expanded district court discretion to grant discovery. Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).
Prior related post:
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