undercover operation. Such operations would be prohibited unless certain threshold requirements were satisfied. The section also specifies the level within the agency at which determinations of compliance with the threshold standards must be made. The purpose of both the substantive and the procedural provisions of this section is to prohibit undercover activities which unjustifiably intrude on privacy interests, privileged relationships, and areas of First Amendment concern. The general threshold standard is one of reasonable suspicion of criminal activity. This standard, which is familiar to law enforcement officers, must be satisfied both for a general undercover operation targeted at a specific type of criminal activity, and for the phase of the operation in which an identified individual is to be given an opportunity to engage in a criminal act. Unless special circumstances are present, agency guidelines may provide that the determination as to whether this standard has been satisfied i.e., as to whether a reasonable suspicion - - exists may be entrusted to the head of the field office in charge (in FBI parlance, the Special Agent in Charge). In all other circumstances, or if the agency guidelines do not otherwise provide, the determination must be made by the agency's Undercover Operations Review Committee (UORC). Two sorts of special circumstances require UORC involvement. The first case is the presence (or reasonable expectation) of any of the twelve special circumstances listed in proposed Section 3803 (b) (1) - (12). This list is drawn from the list of "sensitive circumstances" which, under the current FBI undercover guidelines, require headquarters involvement in decisions about undercover operations. The second case not only requires that findings about satisfaction of threshold standards be made by the UORC, but also raises those standards to a higher level. Operations which will involve either the infiltration of a political, governmental, religious or news media organization, or the impersonation of an attorney, clergyman, physician, or reporter, may not be initiated or maintained unless there is probable cause to believe that the operation is necessary to detect or prevent specific criminal acts. This higher standard is justified because such operations may implicate important interests protected by the First Amendment, or by traditional evidentiary privileges. The determination of probable cause must be made by the UORC (rather than the field office) to bring greater objectivity and perspective to the decision. Proposed Section 3803 (c) authorizes agency guidelines to provide an exception to the usual threshold requirement determination procedure in the case of defined exigent circumstances. Under such an exception, the head of the field office could make the determination, even in a situation in which UORC approval would otherwise be required. An immediate written report to the UORC would have to follow any such emergency decision. Proposed section 3803 (d) requires findings to be made in writing and to state specific facts and cricumstances. Proposed section 3803 (e) provides that the provisions on threshold requirements are not judicially enforceable. To a great extent, the provisions of proposed Section 3803 simply codify principles already in operation in the FBI undercover guidelines. However, the Undercover Operations Act, besides applying these principles to all Justice Department agencies engaged in undercover work, would also make some substantive changes. For example, the use of undercover agents in preliminary inquiries when there is not even a reasonable suspicion of wrongdoing would be prohibited. The higher probable cause standard for undercover operations in areas with First Amendment implications, or where privileged relationships are intruded upon, is also a change from current practice. In summary, proposed section 3803 strikes a balance between the needs of law enforcement and the protection of important privacy interests. The procedures which it establishes should be more expeditious and practical than the proposed judicial warrant requirement for some or all undercover operations. (See proposed 18 U.S.C. Section 3804) Injury to innocent citizens is an occasional, but inevitable, consequence of undercover operations. Sometimes an undercover agent or cooperating individual, in order to maintain his cover, will have to commit a criminal or fraudulent act. In other cases, an unscrupulous informant may capitalize on the scenarid of an undercover operation to bilk innocent citizens. Sometimes legal injury will be caused by the very existence of an operation itself, as in the case of stolen property, recovered through a sting-operation fence, which cannot immediately be returned to its rightful owner. The ability of the injured party to recover from the government in these situations is currently doubtful, particularly when the injury results from the act of an informant rather than of a government agent, or when the discretionary function defense under the Federal Tort Claims Act is applicable. The Undercover Operations Act would provide a remedy under the Federal Tort Claims Act for certain legal injuries inflicted in the course of an undercover operation. The provision covers injuries resulting from illegal acts committed by Federal employees or informants in the course of an undercover operation, or when enabled to commit such acts by participation in the operation. The bill also clarifies that an action will lie for injuries caused by negligent supervision of an undercover operation, but not for injuries flowing from operational or management decisions. The Federal Tort Claims Act procedures apply, except for the discretionary function defense and the exclusion of intentional The statutory entrapment defense proposed in the Undercover Operations Act is designed to reform and clarify the law of entrapment, while seeking to deter the worst potential abuses of the undercover technique. Proposed Section 16 establishes an affirmative defense of entrapment which may be established by showing to the court, by a preponderance of the evidence, that the defendant was induced to commit the offense by government action which more likely than not would have caused a normally law-abiding citizen to commit a similar offense. The inducement could have been made by a government agent directly, or by a private party (such as a cooperating individual) acting under the direction of or with the prior approval of law enforcement authorities. The proposal thus substitutes an objective test for the subjective "predisposition" test mandated by current, judge made law. The bill also specifies three circumstances in which the defense should be deemed to have been established. If the defendant can show that the government threatened harm to person or property, or coercively manipulated his economic or vocational situation, or provided him with goods and services which were otherwise unobtainable but required for commission of a crime, then he should be entitled to acquittal. While the occurrence of any of these overreaching tactics would in most cases violate the general entrapment standard stated in proposed section 16(a), each is sufficiently objectionable to justify a finding of entrapment per se. |