Lopez’s lawyers say his arrest was part of an alarming trend within the Drug Enforcement Administration and other agencies that has, they contend, produced racially biased results — not only in New York but also in other major U.S. cities where federal law enforcement is working aggressively to reduce violent crime.
In the last decade, none of the 179 defendants arrested in DEA reverse-sting cases in the Southern District of New York were white, according to an accounting by the Federal Defenders of New York, a nonprofit legal defense group that represents Lopez. All but two were black and Latino, the data show.
DEA officials vigorously defend the agency’s use of reverse stings and its strict adherence to Justice Department guidelines prohibiting racial profiling, saying these operations undermine major drug traffickers, reduce violence and, ultimately, save lives. Lopez and his co-defendants were armed and dangerous and conspired to commit a serious crime, authorities say.
Critics call the practice a form of entrapment, and the judge in Lopez’s case, Jed Rakoff, seemed troubled early on by the arrest disparity data cited by his lawyers. In November, Rakoff took the surprising step of ordering the Manhattan U.S. attorney’s office to disclose to defense attorneys the DEA’s practices and procedures for conducting such operations. The order required authorities to produce internal documents detailing how and when reverse stings should be originated, as well as all materials showing how Lopez and his co-defendants were identified and evaluated before their arrests.
Rakoff’s decision reflects a shift in judicial thinking happening elsewhere in the United States. Though experts say his finding was a first in New York, federal appellate courts in other jurisdictions — including circuits that cover Chicago, Los Angeles and Philadelphia — have previously ruled in favor of defendants seeking disclosure of law enforcement rule books and internal communications over concerns about racial bias.
This shift has been driven primarily by public defenders and advocates who, armed with data, point to the Constitution’s guarantee of equal protection under the law. It has proved frustrating for law enforcement officials, who argue they are carrying out their mandate to take dangerous people off the streets.
The ramifications, experts acknowledge, could be profound.
“These programs,” said Sonja Starr, a criminal law professor at the University of Michigan Law School, “are worrying the courts.”
“A significant thing about it is that although these [decisions] have emerged in the context of a particular type of policing program, the reverse-sting operations, they could potentially set a more generous defendant-friendly standard for selective policing more broadly.”
'High-level and often violent'
Authorities began using reverse stings in the 1990s to combat a surge in drug-related robberies in Miami. The technique proved successful and was adopted elsewhere.
In 2014, the Federal Criminal Justice Clinic at the University of Chicago Law School, detecting racial disparity, set out to challenge how law enforcement employed reverse stings. Led by the program’s director, Alison Siegler, the team gathered data on 43 arrests in the Northern District of Illinois, revealing multiple instances in which the Bureau of Alcohol, Tobacco, Firearms and Explosives departed from its targeting criteria pertaining to people of color and the requirement that suspects have a history of criminal violence.
Their work resulted in dismissal of the most serious charges against 27 defendants, and many of their clients received comparatively generous plea deals that included time served.
USA Today reported that year that, across the United States, 91 percent of defendants busted in ATF stash-house stings were minorities, raising broader questions about the practice. The reporting prompted an angry response from one senior ATF official, who insisted “there is no profiling going on here” and that the agency was targeting “the worst of the worst.”
The DEA maintains a similar position about the data recently unearthed in New York. In a statement, Special Agent in Charge Ray Donovan, who oversees the agency’s field office there, said its investigations focus on “individuals and organizations who are major traffickers responsible for distributing millions of dollars’ worth of illicit drugs fueling the worst drug crisis in history to date.” The 46 cases highlighted by Lopez’s defense team, which date to 2009, involve “high-level and often violent targets” with access to deadly weapons, he added.
The DEA, Donovan said, “is in the business of saving lives by dismantling drug trafficking organizations, seizing drugs, and curtailing drug-related violence; all of which threaten public safety.”
Authorities in New York have labeled Lopez the “organizing force behind orchestrating and gathering together” the team that went to rob the DEA’s Harlem stash house. He bragged to informants that he “had a lot of experience in committing these types of robberies,” Assistant U.S. Attorney Dominic Gentile argued at Lopez’s bail hearing in August, according to a court transcript.
His leadership role “is evidenced by the more than a dozen recorded calls between Mr. Lopez and the two confidential informants in which the defendant discusses things such as whom to include in splitting the profits from the robbery,” the prosecutor said. He was so committed to the effort, he formed a second robbery squad after his initial roster fell through, Gentile argued, hoping to convince Rakoff that Lopez should remain in jail. (He was released on a $100,000 bond and restricted to home confinement, except to work a pair of overnight jobs.)
The government suggested that the racial disparity in reverse-sting arrests could be the result of African American or Latin American informants recruiting other blacks or Latinos. (The terms “Hispanic” and “Latino” tend to be used interchangeably in the documents and among the people cited in this report to describe people from Spanish-speaking communities.)
Lawyers for those accused in the Lopez case said that’s no excuse. They note that the reverse-sting arrest data for New York’s Southern District is disproportionately high compared with the populations of Manhattan or the Bronx, the two most diverse counties in the district.
“If the fact of the matter is that [a] minority then reached out to other minorities, it doesn’t negate the fact that the initial contact by law enforcement was [to] 100 percent minorities,” said Xavier Donaldson, an attorney for Lopez’s co-defendant Wandy Dominguez.
'Stark evidence of disparity'
The disclosures ordered by Rakoff could help support Lopez’s claim of selective enforcement, a violation of his equal-protection rights under the Constitution.
David Patton, executive director of the Federal Defenders of New York, declined to comment on the Lopez case but said “these fake stash house sting prosecutions are particularly troubling, not just because they are brought almost exclusively against people of color, but because the agents and prosecutors control them from start to finish.”
Proving discrimination in the Lopez case and others like it is a struggle because of the often-
adhered-to legal notion that a challenger must prove a “similarly situated” person, different only in race, would have had a different outcome, according to Yale legal researcher Issa Kohler-Hausmann.
“The way that federal courts and legal doctrine go about defining discrimination is nonsensical,” Kohler-Hausmann said. The thinking ignores that we live in a “highly segregated” society created by racist policies.
In his ruling, Rakoff wrote that reverse-stings “are open to potential abuse, since they are not cabined by the demands of reality, but only by the vagaries of imagination.” Yet at a conference with attorneys on Nov. 26, Rakoff said his cursory review of the records he ordered revealed nothing to support “any notion of intentional discrimination” on the basis of race.
“What strikes me so far is that here the Government has produced several hundred pages or so of mostly notes, memoranda, or other investigative material showing how defendants were identified and evaluated as targets in this particular reverse-sting operation,” Rakoff said in court. The judge added that he didn’t see even a “smidgen of a suggestion” that racial bias played a part in the targeting, and that he was leaning toward not allowing additional discovery in “what seems at this point perhaps to be a fishing expedition to go forward.”
Lopez attorney Christopher Flood said the records produced by the DEA were incomplete. The agency’s training materials are also necessary to show what is being done to “ensure that this is a race-neutral policy.”
“Nothing that we have seen . . . gives any guidance on what do you do when there is stark evidence of a disparity,” Flood added.
A prosecutor replied that reverse-sting training materials for the DEA do not exist.
“And that’s remarkable,” said Flood.