CA10: An arrest during a larceny sting where a backpack was left near an ATM was not in violation of clearly established law; qualified immunity applies

An arrest during a larceny sting where a backpack was left near an Albuquerque ATM was not in violation of clearly established law, so qualified immunity applies. Quinn v. Young, 2015 U.S. App. LEXIS 3959 (10th Cir. March 13, 2015)*:

We are not alone among the circuit courts in recognizing that sting operations present unique questions relating to suspect culpability, particularly regarding the question of intent. See, e.g., United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th Cir.) (noting that “[t]he ease with which the government can manipulate” factors, including intent, in sting operations, causes courts to be “wary of such operations in general” (quoting United States v. Briggs, 623 F.3d 724, 729-30 (9th Cir. 2010)) (internal quotation marks omitted)), cert. denied, ___ U.S. ___, 134 S. Ct. 261 (2013); cf. United States v. Black, 733 F.3d 294, 298, 303 (9th Cir. 2013) (noting “troubling aspects” of a reverse sting designed “to find and arrest crews engaging in violent robberies of drug stash houses,” including “[t]he risk inherent in targeting . . . a generalized population,” specifically, “creat[ing] a criminal enterprise that would not have come into being but for the temptation of a big payday, a work of fiction spun out by government agents to persons vulnerable to such a ploy who would not otherwise have thought of doing such a robbery” (emphasis added)), cert. denied, ___ U.S. ___, 135 S. Ct. 267 (2014).

Several commentators have likewise highlighted similar concerns engendered by sting operations. See, e.g., Josh Marquis, Prosecutors and the Media: It’s Better Than You Think, 43 Prosecutor 21, 21 (2009) (noting that, when “law enforcement was left with sting operations,” “[p]roving specific intent was often difficult”); see also Richard H. McAdams, The Political Economy of Entrapment, 96 J. Crim. L. & Criminology 107, 111 (2005) (“Sting operations involve the government deceiving citizens for the purpose of encouraging them to commit crime.”); Andrew Carlon, Note, Entrapment, Punishment, and the Sadistic State, 93 Va. L. Rev. 1081, 1124 (2007) (“[D]on’t all sting operations necessarily ‘create’ crimes? Certainly some undercover operations involve police officers or informants infiltrating transactions or operations that would have transpired whether the police agent was there or not—these situations are simply a more active form of surveillance. A true sting, however, involves more than that—it entails, at a minimum, the undercover operative’s active creation of an opportunity for crime.”); cf. Bruce Hay, Sting Operations, Undercover Agents, and Entrapment, 70 Mo. L. Rev. 387, 406 (2005) (“[T]aking the bait is a ‘positive,’ that is, a possible signal that the target is a criminal. A true positive occurs when the bait is taken by a criminal; a false positive occurs when the bait is taken by a non-criminal. … The signaling value of different stings can vary enormously. . . . [Some] stings generate much weaker signals.”).

Notably, in a larceny sting operation like this one, because law enforcement officers have largely manufactured the setting for the crime, they possess considerable knowledge regarding the origin and ownership of the property at issue. See Hay, supra, at 388 (“The defining feature of a sting operation is that through covert means, the authorities create or facilitate the very offense of which the defendant is convicted.”). In particular, the officer arranging a larceny sting knows the identity of the true owner of the item (e.g., here, the Officers were obviously aware that the backpack belonged to the APD) well before that item entices potential thieves. As a result, it is clear to officers at the inception of the sting that when someone eventually appropriates the property used as “bait,” the individual has done so with knowledge that he is not the property’s true owner.