• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

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Monday, August 30, 2010

Using informants to ID gang members (and other secondary uses of informants)

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from "trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public" in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney's Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: "Subject has been identified as a gang member by a reliable informant/source," and, "Subject has been identified as a gang member by an untested informant or source with corroborative evidence." Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed "corroborative evidence" for the untested informant's identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

In San Francisco, being deemed a gang member may mean that your First Amendment rights to association are restricted. Moreover, in California, Tennessee, Florida, South Dakota, and New Hampshire, if you're labeled a gang member by informants, you are subject to significantly higher penalties if convicted of the same crime. In addition, your assets are more likely to be subject to forfeiture, and information about you will be stored in government databases for years. And what's notable about most of these effects is that they occur without the same kind of due process accorded in criminal trials (the exception being the enhanced criminal penalties, which generally require that the jury find beyond a reasonable doubt that the defendant is a gang member). The result, as in San Francisco, is that when they happen there is little a resident of a inner-city, high-crime neighborhood can do about it, because they lack the resources to do so.

And the gang member identification is only one of the more formalized secondary impacts of police use of informants. By secondary, I mean tangential to the main use of informants, which is to "make" criminal cases. Other secondary effects of informant use may be increased police surveillance of alleged criminals, interactions with police that do not lead to arrests, and stigmatization within communities, leading to interpersonal and intrafamily tensions and loss of job prospects. All of these can occur when police rely on informants who are pressured to come up with evidence for their handlers, either to earn money or to work off a beef. And unlike a criminal charge, which at least will involve a defense attorney and some due process, these negative secondary effects are nearly impossible to reverse. Indeed, because police dealings with informants are hidden from public view, they are particular difficult to combat.

Ultimately, this simply means that their is more at stake when it comes to restricting informant use or making it more open to public scrutiny than "merely" criminal convictions. Police harassment, loss of privacy, impingement on civil rights, and loss of property rights also are at issue.