Principles of the Law, Policing

In light of the range of interests implicated by their use, agencies should take great care in relying on undercover officers during investigations. In particular, agencies should:

• (a) ensure that the use of undercover officers does not unduly risk the undercover officers’ safety or the safety of others;
• (b) carefully regulate undercover officers’ participation in illegal activities;
• (c) to the extent possible, limit the intrusiveness of the use of undercover officers; and
• (d) document and report on the use of undercover officers.

Comment:

a. Use of undercover officers. As with informants, undercover officers can provide important evidence during criminal investigations. Sometimes, organized criminal groups or conspiracies can be effectively investigated only by securing inside information. However, agencies’ use of undercover officers raises concerns about:

• (1) the public’s safety;
• (2) the safety of undercover officers stemming from their involvement in ongoing criminal activity;
• (3) intrusiveness, given the reach of some undercover activity into the community; and
• (4) reliability of the evidence secured by undercover officers, in that, although undercover agents are screened and employed officers, it sometimes may be less feasible to carefully document and corroborate evidence in an undercover setting.

b. Distinct interests implicated by undercover officers. Undercover officers are trained, professional members of law enforcement, distinguishing them from informants. However, the surreptitious use of law-enforcement personnel creates special risks, including to safety and of intrusiveness. There also are great risks of injury to the officers themselves, as well as to members of the public. There are special concerns regarding legitimacy if law enforcement is directly or indirectly a party to criminal activity.

The use of undercover agents can be highly intrusive, as such use invades privacy and involves surveillance of a wide range of community activities, including confidential and privileged relationships. The use of undercover agents can be particularly intrusive if the agents are posing as members of the press, clergy, or community groups, or as public-health officials, lawyers, or members of any profession that relies on the public trust. Knowing the government engages in this conduct can make people or groups feel targeted, and can chill speech and association. It is a necessary, but nonetheless concerning, exception to the requirement in § 1.07 that officers be truthful in interactions with the public.

c. Policies. Any involvement of undercover agents in criminal activity should be limited to the most high-value investigations. Written policy should include substantive limits consistent with the principle of harm-minimization to ensure that, consistent with § 1.04, the risk of injury to officers and the public be reduced to the extent possible.

Appropriate justifications for undercover agents’ participation in illegal activities include:

• (1) to obtain information or evidence necessary for the success of the investigation that is not reasonably available without their participation in the activity;
• (2) to establish or maintain credibility of a cover identity; and
• (3) to prevent death or serious bodily injury.

Policies should require supervisory approval in advance for any ongoing undercover work by officers. The more intrusive the use of the undercover officer, the more limitations should be imposed on that officer’s activities, if allowed at all.

d. Reporting. Agencies should document and report on the use of undercover officers. Although sensitive information regarding criminal investigations should not be shared, the public should be able to evaluate the scope of an agency’s use of undercover agents and the general practices and reach of their activities.

Reporters’ Notes

The use of undercover agents provides law enforcement with the means to covertly investigate criminal activity, and such agents can be invaluable. For that reason, the use of undercover agents remains an integral part of law-enforcement practice.

Although undercover activities are not often documented in a manner that permits members of the public to assess the extent or nature of their use, it appears that law enforcement’s use of undercover agents is increasing. In the federal system, law enforcement “has significantly expanded undercover operations in recent years, with officers from at least 40 agencies posing as business people, welfare recipients, political protesters[,] and even doctors or ministers to ferret out wrongdoing . . . .” Eric Lichtblau & William M. Arkin, More Federal Agencies Are Using Undercover Operations, N.Y. Times (Nov. 15, 2014), https://www.nytimes.com/2014/11/16/us/‌more-federal-agencies-are-using-undercover-operations.html. Indeed, “[a]cross the federal government, undercover work has become common enough that undercover agents sometimes find themselves investigating a supposed criminal who turns out to be someone from a different agency.” Id. Although much of this expansion arose following the September 11, 2001, terrorism attacks, today, many of these undercover “operations are not linked to terrorism,” but instead “reflect a more aggressive approach to growing criminal activities like identity theft, online solicitation[,] and human trafficking, or a push from Congress to crack down on more traditional crimes.” Id. Undercover operations also are common among state and local agencies. See, e.g., Major Crimes Division Standards and Procedures, L.A. Police Dep’t, http://www.lapdonline.org/‌search_‌results/‌content_‌basic_view/27435 (last viewed May 28, 2020) (providing standards for Los Angeles Police Department undercover agents); George Joseph & Liam Quigley, Plainclothes NYPD Cops Are Involved in a Staggering Number of Killings, Intercept (May 9, 2018, 7:00 AM), https://‌the‌intercept.‌com/2018/05/09/saheed-vassell-nypd-plain-clothes (discussing New York Police Department undercover agents).

The use of undercover officers can lead to a variety of harms. One concern with the unregulated use of undercover agents is that their activities may not be as readily or carefully monitored as those of other officers, and they may engage in harmful criminal activities including “introduc[ing] drugs into prison, undertak[ing] assignments from Latin American drug cartels to launder money, . . . print[ing] counterfeit bills, and commit[ing] perjury.” Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009). A more explicit example includes an undercover agent “engag[ing] in sexual acts with prostitutes.” Id. at 155 n.6 (citing Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982)). The possible harms of such authorized criminal activity include: “the lack of transparency about basic information regarding authorized criminality, the exercise of unfettered police discretion, and the moral ambiguity that arises when police engage in criminal activity in order to pursue criminals.” Id. at 181.

In some circumstances, however, it is justifiable for undercover agents to be involved in criminality. Under the U.S. Attorney General’s guidelines for Federal Bureau of Investigation (FBI) undercover operations, undercover agents may not engage in conduct that would violate federal, state, or local law unless the participation in such conduct is both justified and minimized. U.S. Dep’t of Just., Undercover & Sensitive Operations Unit, Attorney General’s Guidelines on FBI Undercover Operations (2013). Appropriate justifications for undercover agents’ participation in illegal activities include:

• (1) To obtain information or evidence necessary for the success of the investigation and not reasonably available without participation in the otherwise illegal activity;
• (2) To establish or maintain credibility of a cover identity; or
• (3) To prevent death or serious bodily injury.

Id. at 12. The guidelines provide that undercover agents may not engage in violent acts unless done in self-defense. Id. at 17. The guidelines contain rules against initiating illegal activities to avoid possible entrapment defenses: “Entrapment must be scrupulously avoided.” Id. at 16-17. The guidelines state:

• [N]o undercover activity involving an inducement to an individual to engage in crime shall be authorized unless the approving official is satisfied that –
• (1) The illegal nature of the activity is reasonably clear to potential subjects; and
• (2) The nature of any inducement offered is justifiable in view of the character of the illegal transaction in which the individual is invited to engage; and
• (3) There is a reasonable expectation that offering the inducement will reveal illegal activity; and
• (4) One of the two following limitations is met:
  • (i) There is reasonable indication that the subject is engaging, has engaged, or is likely to engage in the illegal activity proposed or in similar illegal conduct; or
  • (ii) The opportunity for illegal activity has been structured so that there is reason to believe that any persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated illegal conduct.

Id. at 16.

The guidelines also provide a number of preauthorization requirements. Id. See U.S. Dep’t of Just., The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources 30 (2002). Further, “[f]ederal criminal prosecution of FBI informants can result from the informant’s unauthorized criminal conduct or from situations in which the informant exceeds the scope of his authority to engage in ‘otherwise illegal activity’ under the Informant Guidelines.” U.S. Dep’t of Just., Off. Inspector Gen., The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines: Chapter Three: The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2005). See also Joh, supra, at 165 (undercover activity has been used “(1) to provide opportunities for the suspects to engage in the target crime, and (2) to maintain a false identity or to facilitate access to the suspect.”).

The use of undercover officers can and should be regulated by policy that focuses on the officers’ safety, the public’s safety, the intrusiveness of undercover agents’ conduct, and reliability. The U.S. Department of Justice guidelines on FBI undercover operations provides that such operations must be “essential to the detection, prevention, and prosecution of white-collar crimes, public corruption, terrorism, organized crime, offenses involving controlled substances, and other priority areas of investigation.” U.S. Dep’t of Just., Undercover & Sensitive Operations Unit, Attorney General’s Guidelines on FBI Undercover Operations (1992). In determining whether to authorize an undercover operation, the guidelines provide that the following factors should be weighed:

• (1) The risk of personal injury to individuals, property damage, financial loss to persons or businesses, damage to reputation, or other harm to persons;
• (2) The risk of civil liability or other loss to the Government;
• (3) The risk of invasion of privacy or interference with privileged or confidential relationships;
• (4) The risk that individuals engaged in undercover operations may become involved in [restricted] illegal conduct [. . .]; and
• (5) The suitability of Government participation in the type of activity that is expected to occur during the operation.

Id. All agencies should adopt similar threshold rules regarding the use of undercover officers, and should limit the use of such officers to similarly serious state and local offenses.

Agency policies also can and should seek to minimize unnecessary impositions on privacy. Particularly high-profile concerns have been raised in the use of undercover officers to infiltrate civil-rights, religious, and community groups. Most infamously, over many decades, the FBI and other agencies conducted domestic counterintelligence against groups considered subversive, including civil-rights and women’s equality groups. Following a U.S. Senate investigation of such conduct, the Senate Select Committee recommended greater oversight over such activities, concluding that intelligence agencies undermined the constitutional rights of citizens by “infiltrating groups with informants,” and treating as targets “a wide array of citizens engaged in lawful activity.” Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Notable Senate Investigations, U.S. Senate Historical Office 1-2 (Washington, D.C. 1976). More generally, “[d]eception involved in undercover investigations often infringes on the privacy of those subjected to the investigation and of others who may come into contact with the investigator.” George E. Dix, Undercover Investigations and Police Rulemaking, 53 Tex. L. Rev. 203, 211 (1975). And, “[w]hen undercover investigators enter into personal relationships with subjects unaware of their official capacity and covertly obtain information concerning the subjects’ relationship with others, they infringe on the interest in interpersonal relations.” Id. This can create a chilling effect on interpersonal relations, where “[e]ven persons not themselves the subject of such investigations may be affected by awareness that such investigations occur and the possibility that they may be subjected to one.” Id.at 211-212. Agency policies should prohibit romantic relationships between undercover officers and community members. Privacy concerns are especially heightened in scenarios in which undercover agents are posing as professionals, such as physicians—which “may discourage the formation or continuation of a physician-patient relationship.” Id. at 212. Some police departments limit the roles undercover agents can play. For example, the Los Angeles Police Department prohibits police officers from posing as members of the news media. L.A. Police Dep’t, L.A. Police Department Manual: Policy § 547, available at http://www.lapdonline.org/‌lapd_manual/‌volume_1.htm#544 (“Once a police officer is discovered in such a role, particularly in a crowd control situation, legitimate members of the media become suspect and could possibly be exposed to danger. In addition, such undercover activity does damage to the trust which should exist between members of a free society and the news media which serves them.”).

Documentation may not always be feasible given the nature of undercover operations. For example, it often not be suitable to use recordings in undercover operations due to their clandestine nature. Thus, the International Association of Chiefs of Police’s model policy on the use of body-worn cameras advises that such cameras should not be worn in conjunction with undercover operations. Int’l Ass’n Chiefs Police, Model Policy: Body-Worn Cameras 2 (2014), available at https://www.theiacp.org/sites/default/files/all/b/BodyWornCamerasPolicy.pdf. As a result, carefully ensuring that an undercover officer documents evidence once returning from the field becomes all the more important.