LEAD US NOT INTO TEMPTATION: STASH HOUSE STINGS AND THE OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE
Over the past two decades, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") has helped convict hundreds of individuals by enticing them to commit fictional crimes. These operations, known as "stash house stings," involve the recruitment by undercover agents of suspects to rob a residential house containing large amounts of drugs and money. Every detail of the robbery, however, is a product of the government’s imagination—the stash house itself, the amount of drugs supposedly inside the house, the gang members guarding the house, and of course, the idea to commit the robbery. Although the ATF’s purported focus is on targeting dangerous criminals, in practice these stings often trap poor, minority, low-level offenders with no propensity to commit major drug offenses. Moreover, while the stash house stings draw close to entrapment, in most cases an entrapment defense is unavailable because courts consider willingness to commit the robbery as evidence of predisposition. In recent years, however, an alternative defense has begun to take hold. The “outrageous government conduct” defense is based upon the theory that, regardless of a defendant’s predisposition, certain law enforcement tactics are so inherently shocking that due process principles would bar the government from obtaining a conviction. The Supreme Court, despite its creation of the defense, has failed to establish a set of guidelines for lower courts to use in determining what conduct of law enforcement would be so "outrageous" as to warrant dismissal of an indictment. Accordingly, application of the defense in the lower courts has been unclear. In a series of recent cases arising out of ATF stash house sting indictments, the Ninth Circuit became the first appellate court in the country to specifically identify a set of factors to be used in evaluating a claim of outrageous government conduct. Utilizing these cases as an illustrative tool, this Note proposes an analysis of the outrageous government conduct defense based upon the Ninth Circuit’s six-factor test and suggests that the Supreme Court grant certiorari to articulate an outrageous government conduct defense guided by these factors.
PUBLIC UTILITY ZONING POST-ROBINSON TOWNSHIP: A CONSTITUTIONAL END-AROUND OR INFRASTRUCTURE IMPERATIVE?
This Note examines infrastructure concerns pertaining to oil and natural gas operations in Pennsylvania. Beginning with the General Assembly's enactment of Act 13 in 2012, this Note details the subsequent development of regulatory oversight applicable to these operations. This Note examines how these regulations apply to oil and natural gas pipelines. It provides a holistic examination of Act 13 and the comprehensive exemptions from local zoning law the Act extended to oil and gas operations. It then explains the reasons the Act's broad zoning mandates were held unconstitutional under the Environmental Rights Amendment in the Pennsylvania Supreme Court's Robinson Township v. Commonwealth decision.
This Note argues that exempting these same operations under Pennsylvania's Public Utility Code is not unconstitutional. While Act 13's exemptions operate in a similar manner, the Note explains that exempting operations on a case-by-case basis is the approach most tailored to the Court’s decision in Robinson Township.
SO WHEN DID PUBLIC ORDER START TRUMPING FUNDAMENTAL CONSTITUTIONAL RIGHTS? RETHINKING THE MODERN INTERPRETATION OF THE RIGHT TO ASSEMBLE AND THE ROLE POLICE SHOULD PLAY IN PROTECTING THAT RIGHT
The Assembly Clause of the First Amendment of the United States Constitution was created to protect what early Americans saw as a fundamental right at the heart of what it meant to be a free and democratic society. Throughout the eighteenth and nineteenth centuries, public assemblies played an integral part in American politics and society. These assemblies varied between planned and organic, controlled and chaotic. Whatever characteristics could be attributed to any particular assembly, they were all protected by the Assembly Clause, both in the eyes of law enforcement and the judiciary. Over the last century, however, the right of assembly has taken a back seat to safety concerns and a desire to maintain the status quo. The militarization of America’s local police departments throughout the country has exacerbated this phenomenon.
This Note contends that the militarization of police has created an at-mosphere that is inherently at odds with the freedoms guaranteed by the Constitution. To rectify the mistakes of the past, the Note advocates for three different approaches to the problem. First, it advocates for judicial review of the constitutionality of the current model of police-protester interaction during public assemblies and the modern judicial interpretation of the Assembly Clause. Second, it advocates for an introduction of legislation that would first cease the flow of weapons and training from the military to local police forces and then reverse this failed experiment altogether. Third, this note suggests a rethinking of how police interact with the communities they are called to serve and protect, suggesting that the community policing model best balances the need for maintaining safe communities while still protecting individual freedoms.