# Undercover Legal Question **URL:** \ **Category:** Factual Questions\ **Created:** [March 9, 2016, 6:24pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438 "2016-03-09T18:24:59Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Potestas](https://avatars.discourse-cdn.com/v4/letter/p/50afbb/32.png) [@Potestas](https://boards.straightdope.com/u/Potestas)\ **Post date:** [March 9, 2016, 6:24pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/1 "2016-03-09T18:24:59Z")
Say an undercover law enforcement agent has gotten in with an organized crime outfit or a terrorist group. A hypothetical test for the law enforcement operative is to commit a crime alongside the group they have infiltrated. Are law enforcement personnel within the US, UK, Canada, EU, etc able to commit a crime and have leniancy or immunity if it serves to infiltrate the person into closer trust with a criminal organization so that they can be brought down on a wider scale in the future? An example of a crime would be participating in a large scale heist or a fraud scheme or even helping with a kidnapping, etc or killing a hostage, etc all for the sake of getting deeper within the organization or entity that is being infiltrated by law enforcement. Is there any judicial precedent or case law pertaining to this? ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [March 9, 2016, 7:33pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/2 "2016-03-09T19:33:59Z")
Stanford Law Review article (pdf) on _Authorized Criminality_[http://www.stanfordlawreview.org/sites/default/files/articles/Joh.pdf](http://www.stanfordlawreview.org/sites/default/files/articles/Joh.pdf) ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [March 9, 2016, 7:41pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/3 "2016-03-09T19:41:22Z")
From the article above referencing FBI Guidelines: > [@](#): > > The Guidelines also explicitly consider the involvement of FBI agents in > illegal activity during the course of an undercover operation, referred to as > “otherwise illegal activity”: “any activity that would constitute a violation of > the Internal Revenue Service, and the Drug Enforcement Agency—also have undercover guidelines, those used by the FBI are the most detailed. Federal, state, or local law if engaged in by a private person acting without authorization.”138 In an ordinary undercover operation, the Guidelines explicitly forbid undercover officials from participating in violent acts except as a matter of self defense, encouraging criminal activity in a manner that would constitute legal entrapment,139 and using illegal investigative techniques such as illegal wiretapping.140 > > The Special Agent in Charge may, however, authorize undercover FBI > agents to participate in certain offenses such as the payment of bribes, the > purchase of stolen or contraband goods, money laundering (though not more > than five transactions not to exceed $1 million), the controlled delivery of drugs > (so long as they do not enter commerce), and the making of false representations to third parties.141 Any official providing authorization for illegal activity must consider that illegal activity is justified only if it is needed to obtain evidence that is not otherwise “reasonably available,” to establish or maintain a secret identity, or to prevent death or serious bodily injury.142 > > Felonies not specified in the Guidelines are considered sensitive circumstances > that must be approved by the Undercover Review Committee as well as the FBI > Director, Assistant Director, Deputy Director, or Executive Assistant Director, > depending on the circumstances.143 In all cases, the Guidelines mandate that all > “reasonable steps” be taken to minimize the participation by FBI agents in > illegal activity.144 So generally no violent acts, no illegal activities that would result in a violation of the rights of the accused (illegal wiretapping). ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [March 9, 2016, 10:15pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/4 "2016-03-09T22:15:00Z")
“Or to prevent death or serious bodily injury” makes me wonder about an undercover agent with the mob being told something along the lines of “Break this guy’s legs or we kill you”. **Donnie Brasco** was a good movie that dealt with this sort of thing. There’s even a scene where he initiates a brutal beating of a Japanese restaurant owner for asking him to take his shoes off (because that’s where he hid the wire). I know it was supposed to be based on a true story, but does anybody know how accurate it was? ---
**Author:** ![skdo23](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@skdo23](https://boards.straightdope.com/u/skdo23)\ **Post date:** [March 10, 2016, 2:06pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/5 "2016-03-10T14:06:00Z")
> [@DrCube](#): > > “Or to prevent death or serious bodily injury” makes me wonder about an undercover agent with the mob being told something along the lines of “Break this guy’s legs or we kill you”. > > **Donnie Brasco** was a good movie that dealt with this sort of thing. There’s even a scene where he initiates a brutal beating of a Japanese restaurant owner for asking him to take his shoes off (because that’s where he hid the wire). I know it was supposed to be based on a true story, but does anybody know how accurate it was? I read the book. I don’t think that scene really happened, however he does contemplate what he would do if he was expected to kill someone throughout the book, as FBI undercover operations were fairly new at the time so there wasn’t any protocol for many of the dilemmas he was afraid he might face. IIRC, he decided he would kill another criminal (but not a civilian) if ordered to, or the mobsters who were accompanying him on the hit, depending on the circumstances, if he believed his life would be in danger if he didn’t. Also, throughout the assignment he was frequently wrangling with his superiors to get cash so he could engage in illegal transactions to enhance his credibility but I don’t believe this ever involved drugs. He was especially encouraged by his superiors to purchase guns that were being sold illegally to get them off the street. In addition, Lefty (Al Pacino’s character) was a degenerate gambler who was constantly “borrowing” money from him. He also mentioned that the FBI once issued him some diamonds that were in their custody from an unrelated crime to give to Lefty as a birthday gift. ---
**Author:** ![Potestas](https://avatars.discourse-cdn.com/v4/letter/p/50afbb/32.png) [@Potestas](https://boards.straightdope.com/u/Potestas)\ **Post date:** [March 10, 2016, 4:10pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/6 "2016-03-10T16:10:30Z")
Any idea in regards to the European Union or UK? ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [March 11, 2016, 2:27am UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/7 "2016-03-11T02:27:35Z")
What (if any) is the legal basis for the FBI guidelines? I’m not aware that the FBI has any general power to decree that an act which would normally be a crime is not, in specified circumstances, a crime. So is there some statute which gives the FBI power to “decriminalise” otherwise criminal acts when committed by its own undercover agents? Or are the FBI guidelines just an administrative policy - the acts are still criminal but it is policy not to prosecute? ---
**Author:** ![Carl\_Pham](https://avatars.discourse-cdn.com/v4/letter/c/e9a140/32.png) [@Carl\_Pham](https://boards.straightdope.com/u/Carl_Pham)\ **Post date:** [March 11, 2016, 4:45am UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/8 "2016-03-11T04:45:14Z")
Generally speaking the executive of the legal entity in question – the President (for whom the FBI works) in the case of Federal law, or the Governor (for whom the police work) in the case of state law – has very wide prosecutorial discretion, meaning they can choose to prosecute or not crimes, which includes crimes committed by their own agents. There are two limits on this: (1) The political process itself, e.g. if the executive is doing something too outrageous, the legislature can impeach him, or pass laws to stop him, or the people can directly remove him. (2) The constitution of the state and the United States, which put some outer limits on the discretion of the executive, both through the assertion of the rights of any potential victims (including the criminals themselves), and on the duties of the executive. The Supreme Court has issued some guidelines on this, see [here](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/22/the-constitutional-limits-of-prosecutorial-discretion/) for example. But I would guess that broadly speaking if the crimes committed do not violate specific civil rights of any victims – which rules out murder, theft, arson, battery, etc. – and are authorized on a case-by-case basis for articulable specific reasons related to a specific criminal investigation, and can’t possibly be seen (by a jury) as a policy designed to undermine a law or subvert the will of the legislature, then I’d say the Supreme Court (and the supreme courts of any state) will say it’s a constitutional exercise of the executive’s authority, and anyone who doesn’t like it has to resort to political solution (1). ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 11, 2016, 2:09pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/9 "2016-03-11T14:09:27Z")
> [@Carl\_Pham](#): > > Generally speaking the executive of the legal entity in question – the President (for whom the FBI works) in the case of Federal law, or the Governor (for whom the police work) in the case of state law – has very wide prosecutorial discretion, meaning they can choose to prosecute or not crimes, which includes crimes committed by their own agents. There are two limits on this: > > (1) The political process itself, e.g. if the executive is doing something too outrageous, the legislature can impeach him, or pass laws to stop him, or the people can directly remove him. > > (2) The constitution of the state and the United States, which put some outer limits on the discretion of the executive, both through the assertion of the rights of any potential victims (including the criminals themselves), and on the duties of the executive. The Supreme Court has issued some guidelines on this, see [here](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/22/the-constitutional-limits-of-prosecutorial-discretion/) for example. > > But I would guess that broadly speaking if the crimes committed do not violate specific civil rights of any victims – which rules out murder, theft, arson, battery, etc. – and are authorized on a case-by-case basis for articulable specific reasons related to a specific criminal investigation, and can’t possibly be seen (by a jury) as a policy designed to undermine a law or subvert the will of the legislature, then I’d say the Supreme Court (and the supreme courts of any state) will say it’s a constitutional exercise of the executive’s authority, and anyone who doesn’t like it has to resort to political solution (1). The other problem is that when the proverbial fan is hit and all the details come out, the victim (or his surviving family) can sue the heck out of the government for essentially government sanctioned injury. It’s not like anyone can sue you for selling them a brick of cocaine, but they can sue if the police break their legs, undercover or not. This is likely why the line is drawn at actual physical violence. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [March 11, 2016, 4:23pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/10 "2016-03-11T16:23:18Z")
That a Chicago cop shot an unthreatening Laquan McDonald in the back over a year ago is probably old news. I just [watched a video of it on a Washington Post page about Donald Trump :dubious:](https://www.washingtonpost.com/news/the-fix/wp/2016/03/11/donald-trumps-baffling-explanation-for-violence-at-his-campaign-rallies/). What struck me about the video – and I see the same thing on other videos showing murders by cops – is that no attempt was made to check the victim or to render first aid. In this video, after a long delay, a cop car races up near the body of Laquan McDonald and I thought “Oh, they were just waiting for the emergency medical specialists.” No, these cops just got out of their car and sauntered around, also uninterested in the body lying in the middle of the street. ---
**Author:** ![GusNSpot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gusnspot/32/436_2.png) [@GusNSpot](https://boards.straightdope.com/u/GusNSpot)\ **Post date:** [March 11, 2016, 6:17pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/11 "2016-03-11T18:17:53Z")
> [@septimus](#): > > That a Chicago cop shot an unthreatening Laquan McDonald in the back over a year ago is probably old news. I just [watched a video of it on a Washington Post page about Donald Trump :dubious:](https://www.washingtonpost.com/news/the-fix/wp/2016/03/11/donald-trumps-baffling-explanation-for-violence-at-his-campaign-rallies/). > > What struck me about the video – and I see the same thing on other videos showing murders by cops – is that no attempt was made to check the victim or to render first aid. In this video, after a long delay, a cop car races up near the body of Laquan McDonald and I thought “Oh, they were just waiting for the emergency medical specialists.” No, these cops just got out of their car and sauntered around, also uninterested in the body lying in the middle of the street. Ignoring a wounded person and letting them die also happened at t eh Waco / Biker shoot out IIRC. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 11, 2016, 6:36pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/12 "2016-03-11T18:36:16Z")
The cops that tossed a flash-bang through a front door into a baby’s crib under the completely mistaken belief (perjured assertion) that it was a drug den - just recently settled the lawsuit with the family for $3.5 million. I wonder what the judgement would be if an undercover government agent crippled someone for life or killed them deliberately? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [March 11, 2016, 7:07pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/13 "2016-03-11T19:07:11Z")
> [@septimus](#): > > That a Chicago cop shot an unthreatening Laquan McDonald in the back over a year ago is probably old news. I just [watched a video of it on a Washington Post page about Donald Trump :dubious:](https://www.washingtonpost.com/news/the-fix/wp/2016/03/11/donald-trumps-baffling-explanation-for-violence-at-his-campaign-rallies/). > > What struck me about the video – and I see the same thing on other videos showing murders by cops – is that no attempt was made to check the victim or to render first aid. In this video, after a long delay, a cop car races up near the body of Laquan McDonald and I thought “Oh, they were just waiting for the emergency medical specialists.” No, these cops just got out of their car and sauntered around, also uninterested in the body lying in the middle of the street. > [@GusNSpot](#): > > Ignoring a wounded person and letting them die also happened at t eh Waco / Biker shoot out IIRC. **Moderator Note** This is not relevant to the OP. To avoid a hijack, let’s confine this to undercover operations of the kind mentioned in the OP. Colibri General Questions Moderator ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [March 11, 2016, 8:00pm UTC](https://boards.straightdope.com/t/undercover-legal-question/748438/14 "2016-03-11T20:00:10Z")
> [@Colibri](#): > > **Moderator Note** > > This is not relevant to the OP. Apologies. I thought I was posting in the Pit’s Controversial thread and was baffled when it didn’t show up there. But I had two tabs open, and now see I posted here accidentally.