[Guest post by DRJ]
Let’s start with what we know: It’s legal to sunbathe topless in the Columbus, Ohio, city parks. Beyond that, it gets complicated:
“Robin Garrison, an off-duty 42-year-old firefighter, was walking in Berliner Park in Columbus, Ohio, in May when he saw a woman sunbathing topless under a tree.
He approached her and they started talking and getting comfortable, the woman smiling and resting her foot on his shoulder at one point. [Note: Photo at the link. — DRJ]
Eventually, she asked to see Garrison’s penis; he unzipped his pants and complied. Seconds later, undercover police officers pulled up in a van and arrested Garrison; he was later charged with public indecency, a misdemeanor, based on video footage taken by cops who were targeting men having sex or masturbating in the park.
While topless sunbathing is legal in the city’s parks, exposing more than that is against the law.”
It’s no surprise that the police and defense counsel view this sting operation in different lights:
“Law enforcement officials say that such sting operations are an extremely effective means of lowering crime rates and stopping the criminally minded before they commit worse offenses. From early 2006 to the spring of 2007, there were 160 citations for public indecency in the city, according to an investigation by 10TV News. Among those who were caught in the stings: an Ohio State University doctor, government employees and a retired highway trooper.
But such operations veer dangerously close to entrapment, say lawyers, civil libertarians and defendants who’ve been caught in sting operations. At Garrison’s trial, his attorney argued that it was a case of entrapment. “Columbus police utilized this topless woman to snare this man,” said Sam Shamansky. “He sees her day after day. He’s not some seedy pervert.”
The argument failed to sway a Franklin County Municipal Court jury that found Garrison guilty of public indecency last month. He was ordered to stay away from the park, placed on a year’s probation and fined $250. Currently, Garrison remains on paid desk duty while the fire department conducts an internal investigation into his behavior.”
What is the legal standard for entrapment?
“The definition of entrapment is police activity that induces somebody to commit a crime that they otherwise wouldn’t do,” said Gabriel Chin, law professor at the University of Arizona. “It’s not entrapment to give somebody an opportunity to commit a crime.”
Chin explains that entrapment involves an officer cajoling and persuading someone who’s resistant to the idea of committing a crime. “Just preying on a predisposition is not necessarily entrapment.”
UPDATE 12/29/2007: An article from the Columbus Dispatch has more detail that makes me believe this woman was not a police agent. See this comment.
***** Click MORE for additional entrapment stories. *****
[Edited to add the MORE code. — DRJ]
The article also discusses property-related stings in New York City and this one in El Paso, Texas:
“Another sting operation that made headlines involved police in El Paso, Texas, and U.S. Marshals sending out messages to wanted felons stating that they had “won” free Xbox 360 consoles and/or big-screen plasma TVs. The operation led to 115 arrests last month and the police picked up more than $25,000 in traffic fines.”
(In the Ramos/Compean case, the family of Osvaldo Aldrete-Davila said he was arrested after being lured to the US based on promises of money for his children. I wonder if the mechanism of his arrest was inspired by this sting?)
Operation Lucky Bag, the New York City sting, may be the most interesting and borderline of the group:
“In New York City, nearly 300 people, many of whom had no criminal record, have been snared this year through the NYPD’s Operation Lucky Bag, in which undercover officers leave a wallet, iPod or cell phone in a subway station and wait to see who picks it up. Although deputy police Commissioner Paul Browne says the program has helped cut subway grand larcenies by half, critics say that the police have gone too far.
“It’s pretty straightforward that this is a police-created crime,” said Legal Aid Society lawyer Alex Lesman, who defended a man arrested for taking a bag containing an Xbox video game box, a Sprint cell phone and cash. “The police set this whole thing up. They shouldn’t be doing that and luring people in that situation, especially in this age of terrorism where the transit system is always telling you to be on the lookout for suspicious bags.”
The judge agreed with Lesman, acquitting his client, Antonio Arroyo. “The police should concentrate their noble efforts on behalf of the city on countering real crimes committed every day,” wrote Kings County criminal court judge Matthew A. Sciarrino Jr. “They do not need to manipulate a situation where temptation may overcome even people who would normally never think of committing a crime.”
Other lawyers have argued on behalf of their clients that the operation may also violate New York’s personal property law, which allows someone who finds property worth more than $25 10 days to turn it in to the owner or the police.
An NYPD spokesperson emphasized that Operation Lucky Bag does not use abandoned property; rather it is property actively left by an officer who is still in the vicinity. In addition, it is used at stations where similar crimes have been reported.”
Law professor Chin also thought Operation Lucky Bag went too far, criminalizing behavior that is wrong but understandable:
“Very few people who see a drunk with gold chains or an old lady with money sticking out of her purse succumb to temptation and assault that person,” he said. “But lots and lots of people wouldn’t turn in a wallet when it’s full of money.”
Operation Lucky Bag is troublesome because of the NY lost property statute but also because it might be hard to prove an intent to steal the goods. On the other hand, I’ve never heard of the temptation defense. I’m especially tempted by books but that doesn’t mean it’s okay to take any book I see. Plus, I like the policy of stopping small crime before it becomes big crime. Just because most people won’t assault an old lady for her purse is no reason to excuse property theft that doesn’t involve assault.