Since I’ve been revisiting so many things lately, and Roderick just posted his PPE presentation from last year (which I missed), I figured I’d revisit the topic of police tailgating and entrapment that I mentioned here last year. Down below is the (alas, rejected) abstract proposal I sent to the forthcoming PPE conference. Below the abstract, I’ve pasted a few interesting cases I’ve recently encountered of what I take to be entrapment on my account of it.
I gave an earlier version of the tailgating paper this past July at the NASSP conference in San Francisco, where it was mostly met with puzzlement. The main objection from the audience was that my account of entrapment-by-intimidation was, in some sense, too revisionary to count as entrapment. Police tailgating to induce a moving violation was, most people granted, a due process injustice of some kind–just not a case of entrapment. I was surprised to encounter a small handful of people who didn’t think that police tailgating was either entrapment or a due process injustice of any kind. But I guess weirdos like that are what conferences are for.
I’d post the whole paper, but it still needs some work before it’s presentable. In any case, I’m curious whether readers agree or disagree that my (possibly) revisionary account of entrapment involves cases that are “more entrapping” (because more coercive) than the standard cases of entrapment-by-enticement. As a corollary, I wonder whether the account really is (all that) revisionary.
Cops and Drivers: Police Tailgating as Entrapment
Tailgating is a colloquial term for the traffic offense of “following too closely,” that is, of one vehicle’s following another more closely than is safe, given driving conditions and the speed of the relevant vehicles. Police tailgating, as I’ll use the term, is tailgating by an active duty police officer in the course of her official duties, whether in a marked or unmarked car. Entrapment refers to a situation in which a government agent wrongfully instigates a criminal act in order to prosecute it. Successful invocation of an entrapment defense implies that the defendant is not guilty of the charge made against him.
In this paper, I argue that police tailgating to instigate a moving violation is, as a matter of existing (American) law, a case of entrapment, or else, given the requirements of justice, ought to be regarded that way. The disjunctive nature of the claim is required by the ambiguous legal status of entrapment defenses in traffic court. Though not strictly speaking ruled out of court, entrapment defenses are generally thought inappropriate for use in traffic cases, and are rarely taken seriously there. To the extent that the law allows them, I argue, that fact ought more explicitly to be codified, institutionalized, and made known. To the extent that the law formally disallows or informally discourages them, it violates the requirements of justice.
Despite its apparently trivial appearance, my thesis has some surprising implications. For one thing, if correct, the thesis requires us fundamentally to re-think the nature of entrapment defenses in the law. The standard paradigm for the application of an entrapment defense in American law is the law enforcement sting operation (typically in federal law enforcement): A entices B into the commission of a crime, thereby entitling B to invoke entrapment as a defense against prosecution for that crime.
Police tailgating employs a very different causal mechanism from a sting operation, but to much the same end: A intimidates or flusters B into the commission of an offense by the functional equivalent of vehicular assault. Arguably, entrapment-by-tailgating is more entrapping than entrapment-by-enticement, being (as I see it) more coercive than enticement. Yet entrapment-by-enticement is regarded as more obviously paradigmatic of entrapment than entrapment-by-intimidation. On my account, this assumption, widely accepted in both the legal and philosophical literature (as well as in federal case law), gets its normative and conceptual priorities backward: surely it’s the more entrapping (or coercive) causal mechanism that ought to be regarded as more obviously paradigmatic of entrapment, not the less so.
In getting us to rethink entrapment defenses, the thesis also requires us to rethink the normative significance of traffic law. Though apparently trivial, traffic stops account for the vast majority of encounters with the police, encounters that serve as the pretext for further, more “serious” encounters. In overlooking them, we overlook a fundamental source of injustice in law enforcement, and minimize some difficult and important questions.
The case of Matthew Mottor, described in this article, strikes me as another case of entrapment. The causal mechanism of intimidation in the preceding two cases differs from that involved in police tailgating, and intimidation itself differs from enticement. But my view is that all four cases–entrapment by enticement (the standard case), entrapment by vehicular threat (police tailgating), entrapment by a combination of enticement and command (the video above), and entrapment by straightforward command (Mottor’s DUI)–are (or ought to be) subsumed under the same concept, entrapment, and ought therefore to license the same affirmative defense.
Your argument seems right to me. But anarchists are not a representative demographic.
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BTW, my anarchist peeps and I could certainly have gotten this onto one of our PPE panels, FWIW, FYI, FOMO, FEMA.
It almost seems a matter of stipulation whether entrapment should be understood broadly as I prefer, or narrowly as the legal profession prefers. It’s often hard to come up with an argument for why one conceptual scheme ought to be preferred over another when either might justifiably be adopted. We could, after all, adopt the narrow conception of entrapment and regard what I regard as entrapment-by-intimidation or entrapment-by-provocation as a separate violation of due process calling for a remedy, but a different one than entrapment. But I guess my view is that the similarity that obtains among the various sorts of entrapment is relatively obvious (at least to me), and the fact that “my” cases are more coercive than the standard enticement cases suggests that they’re more paradigmatic of what the standard paradigms try to capture than the standard paradigms themselves.
So my argument really turns on the claim that entrapment is an unjust form of coercion; the more coercive it is, the more unjust and the more paradigmatically entrapping. (That is, the more coercive it is, the more it resembles literally taking your hand and forcing you to commit a crime, then prosecuting you for it.) And my explanation for the widespread fixation on enticement is pure contingency: lawyers fixate on those cases for reasons having to do with the entirely contingent shape that federal criminal law has taken in the U.S. over the past century. There’s no good reason for the fixation beyond the sheer fact of precedent. Unfortunately, that fixation really does seem to convince people that enticement is a necessary condition for entrapment.
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