Legal wrangling could pose challenge to proving racial profiling claims

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U.S. Senior Judge Christina Armijo/courtesy U.S. District Court

On her last day as chief of the U.S. District Court for New Mexico in February, Judge Christina Armijo granted a motion from the lawyers representing Lonnie Jackson and Diamond  Coleman. Prosecutors, the order said, must turn over all background checks run through the National Crime Information Centers (NCIC) database during a 2016 law enforcement sting operation in Albuquerque.

Jackson and Coleman, two of the 28 black people arrested in the federal Alcohol Tobacco Firearms and Explosives (ATF)’s operation, are trying to prove the agency racially profiled them in a massive undercover operation. Armijo’s order represented a step toward that goal.

The NCIC queries, not only for the 103 people arrested during the four-month operation but everyone ATF agents investigated but did not pursue, would enable them to test their theory. They could compare the information on every individual, and their race, the ATF queried in the national database against those the ATF arrested.

“The court agrees that defendants’ burden to demonstrate disparate treatment in the face of ATF’s criteria for arrest is essentially insurmountable without access to the information ATF had when it made” decisions about who to arrest and who to let go, the judge wrote in her Feb. 7 order.

Two months after Armijo’s order, prosecutors have refused to follow the judge’s instructions, Armijo has transitioned to senior judge status, and a new judge assigned to the case has signaled he may view Coleman and Jackson’s racial profiling claims differently.

Prosecutors argued in a hearing earlier this month that producing all the NCIC reports would be overly burdensome — and likely even illegal. In many instances, there were not hard-copy reports for people who were investigated but not pursued.

U.S. District Judge William “Chip” Johnson/courtesy U.S. District Court

Judge William P. “Chip” Johnson invited prosecutors to file a motion asking him to reconsider Armijo’s order.

Johnson likely won’t rule on the  motion for weeks, if not months.

Coleman, 29, is charged with two counts each of distributing methamphetamine, illegally possessing a firearm as a felon and carrying a gun during drug transactions. Jackson, 49, faces a lone count of meth distribution.

Previous felony convictions against both men, although not for violent crimes, mean Coleman could face 20 to 140 years in prison and Jackson 10 years to life. Both men have been behind bars since their arrest in the summer of 2016, a period in which both their mothers have died. Neither was allowed to attend the funeral.

Armijo’s order giving them access to additional information from the government based on a claim of “selective enforcement” is rare in the federal court system, said Katie Tinto, a law professor at the University of California at Irvine who has studied large-scale ATF operations across the country.

“You don’t see many selective enforcement claims, partly because you have to have some sense of a group who are being targeted,” Tinto said in a telephone interview. “It’s even more unusual to see a judge willing to take the step of letting defense counsel at least partially explore the claim.”

Armijo is the second judge in Albuquerque to grant a motion for discovery based on a selective enforcement claim. Last year, Senior U.S. District Judge James Parker ordered federal prosecutors to turn over additional documents to Yusef Casanova, another of the black defendants netted in the operation.

A third judge, James Browning, denied a similar motion from Cedric Laneham, ruling that his lawyer had not met the legal standard of “some evidence … of discriminatory effect and discriminatory intent” in a law enforcement operation.

Parker’s and Armijo’s rulings have differences and similarities.

While Parker determined Casanova’s lawyer had met the standard, Armijo left that question open. She did not find it persuasive that 28 of the 103 people arrested in the ATF operation were black, or 27 percent, in a city whose black population is 3 percent. Or that the ATF agents who oversaw the Albuquerque operation had been accused of racial profiling in other cities. Instead, she ordered prosecutors to turn over the NCIC reports to give defense lawyers a way to determine if enough evidence exists of a race-based arrest pattern.

Both judges seized on the design of the operation.

The methods of the ATF agents made it likely they would arrest a disproportionate number of minorities, Parker concluded. In the case involving his ruling, the ATF arrested a black man for brokering the sale of about an ounce of methamphetamine to an undercover agent but not the white man who appeared to supply the drugs minutes before the transaction.

In her case, Armijo zeroed in on an aspect of the operation that NMID focused on last year: ATF’s use of confidential informants. Three were black and two were Hispanic; all were from out of town, like the agents who supervised them.

Attorneys for Jackson and Coleman raised the notion of “homophily,” a sociological principle that says “a contact between similar people occurs at a higher rate than among dissimilar people,” as part of their argument for the NCIC reports.

Prosecutors dismissed that idea as “ridiculous,” arguing that criminal histories and ongoing criminal activity were the sole criteria for whom the ATF targeted, but Armijo explored homophily at length in her order.

During two hearings on the motion for additional discovery, defense lawyers and Armijo questioned supervising ATF agents at length about how the informants were chosen. One agent said he did not have any white confidential informants at the time of the operation, and the other said he did not consider race when settling on informants.

Prosecutors have pressed judges to view the ATF operation as a series of “conspiracies” that often involved multiple suspects of different races, rather than to look at the racial and ethnic breakdowns of who was arrested. Law enforcement has no control over who one suspect might lead agents to next, the agents testified.

But Armijo found in the ATF’s own numbers support for the defense’s theory of homophily, noting in her opinion: “Of the 26 cases involving multiple suspects, 15 involved a black confidential informant. Of these 15 instances, seven involved one or more black suspects. At the same time, only two of the 11 multiple suspect cases involving non-black confidential informants involved black suspects.”

Those figures, along with with agents’ testimony, Armijo reasoned, supported the defense theory of homophily — although that, by itself, was not enough to “show that ATF purposefully selected black confidential informants so as to target black people.”

Armijo also acknowledged in her ruling that several black people wound up behind bars while white people were not pursued for potentially committing the same crimes.

Tinto reviewed Armijo’s order before speaking with NMID and was quick to say “no one is saying any one person is a racist.”

“But there are growing questions about how ATF sets up these stings, how the (informants) are chosen and used,” the law professor said. “That’s a conscious choice. It’s something agents are aware of. In this case, the judge seems to be expressing similar discomfort with how the Albuquerque operation was structured and its apparent results: targeting poor people of color.”

Defense lawyers hope to use the NCIC reports in a regression analysis they believe will show race was a determining factor in who was arrested.

Armijo’s ruling will not be the final word, however.

Prosecutors filed a court pleading in March saying they had complied with Armijo’s ruling by turning over “all of the NCIC reports that exist” and had no obligation to produce hard-copy reports for people the ATF investigated but did not not arrest.

Handing over that information to defense lawyers might constitute a felony, the prosecutors argued. The NCIC database is maintained by the FBI — not the U.S. Attorney’s Office or the ATF — and the FBI is unwilling to produce the reports without an explicit order from the court.

Defense lawyers never had a chance to respond to the prosecutors’ filing.

The U.S. Attorney’s Office withdrew the filing at a hearing on April 9 before Judge Johnson, who appeared skeptical of the racial profiling claims. Rather than settle the dispute over which documents the U.S. Attorney’s Office would turn over pursuant to Armijo’s order, he asked prosecutors to file a motion asking him to reconsider the order altogether.

Prosecutors indicated they would by the end of the month.