How to Avoid Entrapment

 How to Avoid Entrapment
by Sue Basko

see also: Illinois Terrorism Law
see also: Bridgeport Cops vs The Occupiers

The Chicago NATO protests ended with 5 people in jail on serious terrorism charges.  They all appear to have been entrapped by undercover operatives.  The entrapment may be real, but as a legal defense, entrapment is nearly impossible to prove.  There is federal entrapment law and entrapment law in each state.  Three men, called the NATO3, have been charged under the Illinois Terrorism law for allegedly making molotov cocktails. They have been charged under the Illinois law, rather than federal law, and will therefore have to use the Illinois Entrapment law if they wish to use entrapment as a defense.

720 ILCS 5/7-12) (from Ch. 38, par. 7-12)
    Sec. 7-12. Entrapment.
    A person is not guilty of an offense if his or her conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person. However, this Section is inapplicable if the person was pre-disposed to commit the offense and the public officer or employee, or agent of either, merely affords to that person the opportunity or facility for committing an offense.
(Source: P.A. 89-332, eff. 1-1-96.)

 Under Illinois law, entrapment is an affirmative defense.  The defendant must tell the State before trial that he will use the entrapment affirmative defense.  Also, using an affirmative defense means the defendant must admit that he did commit the crime(s) with which he is charged.  He is saying: I did commit the crime, but I only did so because a public officer or employee incited or induced me to do so.  If the defendant can prove he committed the crime because he was incited or induced to do so, then the State gets a chance to show that the defendant was predisposed to commit the crime.   

Having to admit committing the crime makes use of the entrapment affirmative defense very risky.  It is also difficult  for a defendant to prove he was incited or induced to commit the crime, because merely affording the opportunity or facility to commit the crime is not entrapment.  Inducement may include things such as persuasion, threats, coercive tactics, harassment, promises of reward, or putting pressure on a person to do something out of sympathy or friendship.  Undercover operatives are allowed to use false names, change their identities and looks, and tell lies to trick people. 

If a defendant using the entrapment affirmative defense successfully proves he was induced to commit the crime,  the burden then shifts to the State to prove the defendant was predisposed to commit the crime. Predisposed to commit a crime means the person was ready and willing to violate the law.   The predisposition can be shown with evidence of the defendant’s character, reputation, actions, writings, or spoken words.

So -- do you understand entrapment law? The State can send in players who trick you or lure you into committing a crime, and you may be able to prove that, but your entrapment defense will not work if the State can show you were predisposed to commit the crime.  And practically speaking, if you have already admitted you committed the crime, as must be admitted to use the entrapment defense, then it will take some mighty fine defense work to show you were not predisposed to do so.

With the NATO3, the States Attorney has already called them anarchists.  Being known as an anarchist or Black Bloc person could be used in court as evidence that the person is predisposed to build a bomb to cause damage, because that is the reputation of people adhering to those beliefs.  That is why the States Attorney has mentioned this.   The stage is being set to say they were predisposed to commit the crime, even though they were induced to allegedly commit the crime. 

Therefore, if you wish to avoid entrapment, one key way is to avoid association or connotation that you are a member of or involved in any group that engages in violent or illegal acts.  Another key is watching what you write – including and especially online.  Don't carelessly associate yourself with violence or crimes.  Don’t post photos of yourself wearing a bandana over your face, and do not pose with weapons.  Watch how you design your online pages.  If your page has a sinister vibe, the connotation is that you are sinister or at least reckless about your reputation. Be careful of the online names, avatars, or profiles you use.   If you are not predisposed to criminal activity, do not allow yourself to appear as if you are.  If you have trolls implying or stating your involvement in questionable acts, block them and do not respond.  If such people are in your chat, stream, or comments, block them.  Protecting your reputation must trump some troll's freedom of speech.

When an undercover operative enters a group, he or she may be on a dedicated time frame, to entrap someone by a certain date.  For example, two of the people who appear to be agents in the NATO3 case appeared on the scene in Chicago around May Day, that is May 1, when a national strike day was held.  Reports say the two befriended protesters. It sounds as if the three targets, who were from out of town,  were rapidly entrapped within approximately one week of their arrival in Chicago for the NATO summit protests.    

Reports are that when the two infiltrators could not interest the others in bomb-making, they purchased a beer-making kit and left it in the apartment. The State claims 4 bombs were made.  In many or most recent cases of bomb-making entrapment, the undercover operative makes the bombs and coerces their targeted dupes to participate in some way.  In most cases, it is the undercover agent who is doing most of the talking, does the driving, makes the plans, pays for things, has the contacts, and arranges things.  The dupes they entrap are people who are not wise enough to disengage totally and not participate. 

The arrests of the NATO3, just before the summit began, appeared to be timed to serve as a warning to protesters and as  proof that the police were proactively protecting the safety of summit attendees.  There is nothing thus far revealed by the State that looks as if this case is anything other than entrapment on concocted terrorism charges. It is interesting that the NATO3 are all from different states; perhaps if local Chicagoans had been entrapped there would be more uproar.

In most entrapment cases, the undercover operative(s) will wear a recording device and record conversations with their targets.  The goal is to get the targets to make statements that show an interest in bombing or harming a certain location or person. 

This brings us to the most important rule in avoiding entrapment: Never talk about any thoughts, ideas, idle wishes, or plans, no matter how theoretical, to cause harm to any person or place.  If there is a person in the group who is trying to get you to talk about such things, refuse to speak with them or do anything with them.  In entrapment, idle chatter is made to look like serious planning.  Idly agreeing with someone, or not arguing with them against their bad plans, is made into conspiracy.  If you are not openly and avidly against plans for violence, you may be construed to be for such plans.  

In the world of Occupy or other protest groups, there is call for “solidarity.”  You cannot afford to be in solidarity with, or to belong to a group or sub-group that allows members who are for violence. 

Here are some simple rules on HOW to Avoid Entrapment (note: these rules become most important when you are in a situation where entrapment is likely.):

1) If you know a person only from a protest group, you do not know them.
2) If anyone is talking about building bombs or any other act of violence, you should assume that person is an undercover operative.

3) If a person chides or harasses others for not being “radical” enough, you should assume that person is an undercover operative.

4) If something smells fishy, it is.

5) Do not let anyone leave anything in your living space, car, or any shared space, unless you know exactly what it is and you approve. If something seems odd, do not allow it.  Be on the lookout for drugs, weapons, or things that are typical materials for making bombs at home, such as bottles, stoppers, rags, pipes, packaging materials, gasoline, fertilizer, powders, tacks or metal shards, aerosol cans. 

6) Do not carry a package or deliver anything for anyone, unless you open it and see what it is, you know all involved, and you feel confident it is legit.

7) Never buy or carry or deliver any sort of drugs to or for anyone.  Never let anyone bring or use drugs in your home, car, or the place you are staying or working.

8) Never buy or carry or deliver any sort of weapons to or for anyone.  Never let anyone bring or use weapons in your home, car, or the place you are staying or working.

9) Only stay with or travel with people you actually know.  If you must be with strangers, ask trusted people for people they trust.

10 ) If you suspect someone is trying to entrap you, cease all contact with them. Stand your ground on this. 

11) Agents who entrap people have been known to offer money, a nice place to stay, sexual attraction,  a leadership position, prestige in the group, weed, alcohol, and other lures.   Do not let any such thing cloud your judgment.

12) An entrapment game can have many players.  You may be walking into a whole cast of characters. People may make up identities, places they are from, and what they are doing.  Keep in mind, you are the most important character in your own life drama.

13) Infiltrators are often arrested during protest actions.  This is supposed to make them appear "real." In such arrests, the infiltrators often get others arrested with them.  To get as much mileage as they can out of their fake arrests, the infiltrators keep talking about the arrest.

14) When it appears that someone is trying to set you up: Just say no.  Calmly and decisively say no.