The Informant

Barry: I think we all love stories that subject people to the power that they wield over others.
Like what if you audited all of the tax collectors, or gave a surprise exam to every teacher in a
school. I think my favorites are when cops get busted for illegal activity; the stories have it all,
the betrayal of public trust, an unsympathetic villain, but also a sense of vindication that the
justice system can take out its own trash. And this is important because I think deep down, we
have this worry that being a cop makes you above the law. And that’s a scary thing.

Robert: My name is Robert Bryan. I am retired captain from the New York Police Department

Barry: Robert Bryan worked as a lieutenant for the NYPD Internal Affairs Bureau in Long Island
City, Queens. When a police officer is charged with illegal activity in New York City, the charge
is given a log number and then gets forwarded to a district Internal Affairs office. Its called a C-
Case. That’s also the name of Bryan’s book, a memoir about his time in Internal Affairs.

Robert: IAB had a computer system that if there were enough of the same type of allegation that
had been made against someone, even if they were never substantiated, they'd say-- there's gonna
be a self initiated case on this because there's just so many cases against this person. This guy
was the poster boy for this type of case.

Barry: This officer, we’ll call him Officer Pozzi, was a bit of hothead. He had a list of
allegations, like pulling his gun on someone who cut him off on the road, drag racing up to 100
miles an hour on residential streets, and manhandling people in fights over parking spaces. So
Robert Bryan ordered up a lifestyle on Pozzi.

Robert: You want to see where this person goes and what this person does. Does he go to church,
does he sit home and never come out, does he hang out in areas that are known drug locations.
That's really developing a lifestyle- where he goes what he does.
Barry: So it's surveillance?

Robert: It's surveillance, yes.

Barry: Officer Pozzi turned out to be bar hopper, he’d go out drinking telling NYPD stories to
bar patrons until the wee hours of the morning. And there was a pattern to all of his public
outbursts; they all involved him getting angry while driving. So Bryan and his team decided to
set up a sting.

Robert: We just needed some way to get this guy pissed- to put it again and then there's the fine
line not to piss him off to put him in to put him in an environment that he could become pissed
off.

Barry: What's the difference between that?

Robert: Our guy was never gonna go up to him and say hey I don't like your face-- it was just
gonna be, in this case, having a car parked where it would be difficult for him to move his car.
And see what he would do in that case.

Barry: This was Bryan’s idea; they’d follow Pozzi to a bar. One of the guys on the team would
go into the bar and drink, watch Pozzi, interact with him, keep an eye on him. Another guy
would pretend to be a cab driver. They rented a cab, because, what would anger a New York
City driver more than a cab. They’d park the cab in such a way that it boxed Pozzi in. Then the
officer pretending to be a cab driver would be standing at a pay phone looking really busy and
unable to get off the phone. Bryan himself would be in an unmarked car watching the whole
thing from across the street.

Robert: The setting was really good for us because right across the street from this pub was a
restaurant under renovation. So there was a big container. His car was parked directly in front of
the container- so there was no car move away back there and we were able to get our cab right in
in front of him. And as the night went on every other car along the curb in front of the cab left.
So the only vehicle on that block was that cab blocking him in. So if that wasn't gonna be enough
to take him off I don't know what would.

Barry: So like 4 in the morning now?

Robert: Yeah. Bar closing time.

Barry: So he comes out...

Robert: He comes out—he got in, turned on the engine, then he gets out and he halfway gets out
of the car and he's yelling hey is this yours this yours. And you know our guys doing exactly the
right thing he's sort of waving him off with his hand. What we had told our guy on the payphone
was that if he started coming towards you, we wanted we would tell him to run, because we
didn't want any type of a of a physical thing there. He got back in the car, he closed the door
(05:00) and all of a sudden the cab started moving. And there's smoke coming from everything.
He had just gunned it and just started pushing the cab down the block. And you know it's in it's
in park and it's so and there's um he pushed it and since there was nothing in front he pushed it a
full block. And meanwhile there's a when it was called the the bar was closing so there was a
crowd that was outside and they were all cheering and they're yelling NYPD. And and he he
pushed it and the fender came off, and then he spun around came back he made like a victory lap
in front of the pub and then took off into the night with the with with pieces of the cab all over
the place.

Barry: And so you guys nailed him?

Robert: Yeah then that that was easy. I mean it was something like that there's no need to do
anything right then the the next day he was actually arrested by detectives.We transported him to
the precinct in Nassau County for that for a criminal mischief.
Chau: From Slate, this is Hi Phi nation. Philosophy in story form. This season, crime and
punishment. Recording from Vassar College, here's your host, Barry Lam.

Barry: On today’s show, we’re going to look at when we do and when we don’t subject police
officers to the same rules that they apply to us. Last week, we looked a police discretion, and one
officer’s attempt to give us a test for proper and improper use of discretion in a liberal
democracy. This week, we’re going to look at how much discretion police should have in the
first place. Because if you’re in charge of enforcing the rules, you’re also in charge of when you
can bend them in your own favor. One philosopher and former law enforcement officer has been
thinking about this a lot, and he’s concluded that he doesn’t much like bending the rules at all. In
fact, some of the hallmark tools of police investigation, stings, undercover operations, informant
deals, he thinks they’ve gone too far.

Luke: Hi my name is Luke Hunt. I'm an associate professor of criminal justice at Radford
University.

Barry: Luke Hunt is another one of these philosophers I found whose work is based on his
previous life in law enforcement.

Luke: I wanted some kind of adventure. I wanted to do something exciting. And for some reason
or another I settled upon this idea of FBI special agent. I went to Quantico, and I did my training
and the FBI as my first field office sent me to the Charlottesville Virginia, what they call resident
agency. There were five agents, we covered about eleven counties. so I really had to hit the
ground running and do all sorts of things. So I did investigations of gangs, drugs, white-collar
crime, crimes against children. I was out on bank robberies.

Barry: Hunt left the FBI after seven years, his last job was Supervisory Special Agent working at
the national security branch. He went on to get a PhD in political philosophy at the University of
Virginia. When you look at all of the values of a liberal democracy that you want policing to
advance, one of the most important has to be the rule of law.

Luke: Governance by legal and moral principles, as opposed to arbitrary decisions by

government officials. If you think about governing by the rule of law, you can think about it like
this compared to say vast discretion. Too much discretion can pervert law and can pervert
policing. Where I think this is the most pressing issue is when you think about how police have
this tremendous discretion to deviate from the law in a officially sanctioned way. So every
day, the police have the ability to break all kinds of substantive laws as a way to promote their
law enforcement role. I think when you look at how widespread that practice is, how pervasive it
is, just a very routine tool and the law enforcement officers toolkit, there's certainly an argument
to be made that we're no longer governing by rule of law principles but rather were governing by
this very very extreme amount of discretion to deviate from rule of law principles.

Barry: You've spoken it about about it as though it's a kind of obvious to all of us that they break
the law all of the time in the context of policing. But it's not obvious to me right. Like I would
have thought that the right way of describing it is I would have thought that the thing that they
did was you know deceive sometimes but I would have thought that that stuff was legal. Give me
examples of what you have in mind

Luke: In the FBI this is called otherwise illegal activity. It's so common it's almost comical. All
you you do is you fill out a form that your supervisor will sign and that allows you-- or an
informant-- to break actual laws. Whether that be conspiring to do certain acts (10:00) whether
that's selling drugs selling some other sort of illegal contraband, you get permission to break
federal and state laws. It was quite easy to get that permission in the FBI. and I think when you
look at the local and state levels, it's even much easier to get permission.

Barry: If your question is whether the police are above the law, the answer is, it's complicated.
Most of the Internal Affairs investigations Robert Bryan told me about, like with Pozzi,
concerned police officers in their extracurricular activities, where they’re subject to criminal law
like any other citizen. On the job, they are subject to corruption investigations. Internal Affairs
regularly plants money and valuables around the city to see if Officers on a call end up pocketing
it. And for police on patrol, there is a rich history of civil rights litigation and a fourth
amendment setting up legal constraints on police activity. In contrast, for investigations, sting
and undercover operations are subject to almost no judicial review or oversight. Prosecutions of
officers for illegal activity during these operations are almost nonexistent. Decisions about how
and whether to engage in these operations are made almost completely administratively at the
discretion of police, and they give license to law enforcement to violate all manners of statutes
that citizens aren’t allowed to violate under any condition.

There are many different concerns about the rule of law that Luke Hunt is expressing. One thing
not to like about otherwise illegal activity is that as citizen, our goals are always subservient to
the law, while for the police, the law get to be subservient to their goals. I’m sure a lot of us can
make really good utilitarian arguments for why violating some laws are just better overall for us,
and for our society. It really is in the interest of a business owner and their community to hire
and shelter undocumented immigrants. It really is in my best interest to drive 90MPH to get
home to my child late at night. But none of us are allowed to make those arguments to law
enforcement, much less act on them without legal consequences. But the police are allowed to
make these kinds of arguments for law enforcement goals. Yeah, they’re doing otherwise illegal
activity, but it advances this aim of theirs to stop even more illegal activity. Their actions, their
goals, their people are exceptions to the rule of law. And having any exceptions highlights that
not all people are equal under the law, a central tenet of a liberal democracy.

A different concern is that discretion itself is incompatible with the rule of law. This concern
isn’t about whether discretion generally leads to good or bad things, or even that it is used to
selectively break the laws themselves. The mere power to use discretion is something to be
worried about. No person should have this kind of power in a liberal society when it can be
avoided.

Umpiring in sports is a good analogy. You’re supposed to be playing by the rules in sports, but
there are also umpires and judges that enforce the rules, and there is more discretion in some
sports than others. In tennis, the rule is that if a ball even so much as touches a line, it's in. Even
though that’s the rule, it used to be that judges and umpires had the final say on whether a ball
was in or out. It was a rule enforced completely on discretionary calls; the calls determined the
facts. That’s not true anymore. We have instant replay technology that is to a 1/10 of a
millimeter accurate. So now the facts can overrule the judge. Lines judges and umpires are as
subject to the rules of tennis as the players. They judge the lines, they don’t determine the facts
about the lines. And this is better; no person has power over the rules, and the rules do the work
across all tennis matches.

Balls and strikes in baseball are a different story. At least at the time of this recording, in 2020, a
plate umpire has full discretion to call the balls and strikes. Sure they can’t be egregiously bad, if
they make obviously bad calls long enough, they’ll be fired for incompetence. But still, what
they say goes; a ball is a ball if that’s what they say it is. They can’t be overruled, and if you
argue long enough with them, they have the discretion to kick you out of the game.

Having a problem with vast discretion as being inherently incompatible with the rule of law is
like having a problem with baseball umpiring, and wanting it to be more like calling lines in
tennis. You don’t want anywhere for the police to determine what is just and unjust breaking of
law, you want the law to be able to overrule police.

But it can’t be all bad. There are so many crimes that without being caught in the act, it would
just be impossible to prove, and so a certain class of criminals would be de-facto immune from
prosecution, why isn’t that contrary to the rule of law also?

Barry (to Luke Hunt): I put out a Google Alert months and months ago on sting operations just to
see what mostly comes in. And what mostly comes in is child pornography inch and and child
molestation kind of stuff. So when I imagine cases like that I'm imagining like oh good you
know like you know that's exactly what I want sting operations to be. That's not the kind of thing
that you have a problem with or do you?
Luke: If you're going to break the law to enforce it in these sting operations, I think it should be
limited to certain cases. and I keep going back to this. One constraint would be a situation in
which there's some sort of emergency scenario and life is at risk or some sort of serious bodily
injury. and I think in many of the cases where you're talking about crimes against children that
would certainly qualify. The concern I have is you have the police getting very creative- and I've
been involved in situations like this- you get very creative and you can construct these very
elaborate scenarios to ensnare people. And you get to a certain point where you think, wait a
minute, should this be the focus of our efforts and our resources? Should we be putting
informants and undercover operations in a situation such as this- when there's really no risk on
the line in terms of life or bodily injury. Why are we trying to buy and sell drugs on the street to
ensnare kids in that way when that is not a priority in terms of protecting some sort of national
security interest, protecting some sort of life.

Barry: I’m not sure how to think about the issue; is the problem that police shouldn’t have
discretion to engage in otherwise illegal activity, or that they should, but there should be
appropriate tests on legitimate and illegitimate uses of it, like we talked about last week? It's one
of these ongoing problems about whether you want to stick with principles or with results. Luke
Hunt likes the principles; police don’t deserve exceptions the rest of us don’t have. That’s the
principle, don’t violate it unless there’s an extreme circumstance. But I like results. It's good
when undercover agents bribe a corrupt official or a crooked cop and then busts them for it, but
bad when they bust kids for buying joints. Forget about the principle, let’s just figure out good
priorities and bad priorities, and pursue only the good ones.

But there are deeper concerns about granting so much discretion in police procedures. Having
the ability to bring charges or dismiss them at will, having the ability to permit one crime while
enforcing others, gives the police enormous powers to bargain and threaten a citizen to submit to
their bidding. Mix that power with a few frightened kids, and you have an entire underground
system of crime and punishment.
Chau: Hi Phi nation will return after these messages.

Barry: The term “queen for a day” refers to a proffer agreement. It's when you get some one on a
crime but agree to go easy on them if they cooperate and help you get someone else.

Robert: When you have the blessing from an assistant district attorney that may potentially be
prosecuting a case like this, you're able to go swoop up these individuals off the street, tell them
look, we know what's going on, you're willing to testify as to what actually happened here,
you're queen for a day, you're off scot-free. If not, you're going to be pulled into this with as
much culpability as him.

Barry: Bob Bryan used these agreements a couple of times in a case he investigated for Internal
Affairs in the late nineties.

Robert: The police officer was off-duty and had been rear-ended at a red light by this elderly
gentleman and it had been really nothing but a fender-bender.

Barry: This officer, who we’ll call Noonan, filed a series of suspicious claims (20:00) with the
auto-insurance company. The company, seeing that Noonan was a cop, forwarded all of the
claims to Internal Affairs.

Robert: This officer had made claims that he had so many things in his car-- a tea set from
Japan, priceless tea set.

Barry: A 27” color TV and VCR, a $900 superman wristwatch he was apparently wearing during
the accident.

Robert: He even had a leg of a lamb listed that he wanted to be paid for.
Barry: He charged the insurance company for the installation of air conditioning in his home, on
the grounds that he couldn't move the window units in and out, because of his injuries. But it was
two of the priciest claims that caught Bryan's eye.

Robert: He needed to pay a home health aide to give him sponge baths several times a week.
And then he also had broken up with his fiancé because because of this accident he could no
longer perform sexually.

Barry: Noonan was charging the insurance company $1 million dollars for the break up of the
relationship. The claim included a signed three-page affidavit from the ex-girlfriend, detailing
their sex life before and after the accident. It wasn’t possible for Bryan to get Noonan’s medical
files to investigate the fraud, but he thought he could look into the sponge baths and the ex-
girlfriend.

Robert: Turned out that he had worked in Queens central booking-- which is every borough has
their own area where, when arrests are brought from the precinct, they're brought in to a central
location within the borough. And the Home Health Aide that gave him the spongebaths, and his
fiancee who broke up with him, both turned out to be civilian police administrative aides who
worked with him. One at a time on different days we got these two young ladies coming home
and—

Barry: Bryan offered both of them a Queen for a Day. Both women cooperated, right away.

Robert: One of them had some type of a certificate that she had been a home health aide. I never
even went to his house she said. I just know she told me he'd give me some money if I said that I
said I would. And the same thing with the other one. Was in no relationship with him he she just
told me he told me that uh I get some money if I just said that I used to have a relationship and
that it broke up. It was amazing how they didn't realize that there was any problem with this.

Barry: The crime technically took place in Nassau County on Long island, and not New York
City, so Bryan got all of the signed confessions and the rest of the evidence he had about
Noonan’s insurance fraud and took them to the Nassau County DA’s office to press criminal
charges.

Robert: Nassau county just looked at it and chose not to prosecute. So once the criminal aspect is
gone, then department charges are filed. And this officer ended up getting fired.

Barry: The Noonan cases is another instance of justice done with a proper use of discretion. It
just doesn’t seem like anything could be wrong about the use of queen for a day agreements in
criminal investigations. After all, the alternative would be to prosecuting everyone who
committed a crime. You could just interrogate yourself to a confession, and then press charges
for fraud on everyone. Being a stickler for the rule of law doesn’t seem like a more just outcome
in this case. And yet, the underlying principle, allowing queen for a day agreements, the
discretionary use of leniency in exchange for cooperation, underlies one of the most problematic
violations of the rule of law in covert police investigative procedures.

Luke: I think that the topic of informants that's the one area that sort of alarmed me most when I
was in the FBI.

Nick: My name is Nick Taiber. I'm a Midwestener, I grew up in Waverly, Iowa. Life was great in
Waverly. I had a great family. Youngest of seven. Spent my youth and my summer day's playing
on the golf course, going to the pool. Took school seriously, top 10 in the class, graduated with
honors too. It was kind of a fateful time. Fourth of July celebrations were commonly a time when
high schoolers would partake in various activities, usually relating to alcohol consumption. That
was the norm in rural Iowa at that time. I was seventeen years old. This was you know just part
of high school life.
The actual event happened on July 3rd. We were at a house party at that time. And leaving the
house party with another person, you know I was obviously intoxicated and got into an accident.
I was driving, yes. I was driving and probably didn't get more than a half a mile away from the
house and turned blindly into a tree. The license plate was O.K. but the car was totaled. It was
me and a female. At that time, seatbelts weren't worn all too frequently. So, yes I was thrown
into the steering wheel and she was thrown into the dash sadly. You know I was taken away in
an ambulance. At that point I have no recollection of that.

Barry: You must have had a concussion at least, right?

Nick: Probably did. I can remember my head was wrapped. I don't actually recall going home, I
remember being home, waking up to my alarm clock to go into work the next day. I had opening
responsibility for the sandwich shop. I think I probably rode my bike there because the car was
totaled of course. I believe that I was served the next day probably will the infraction, with notice
to appear in court. Because it was OUI-- operating under the influence-- infraction. So there was
a meeting, and I can recall it being in the basement of the old police station. You walk down the
stairs to a door in the shadows. Probably a witness room of some kind. It was cold, the chair was
hard and my hands were sweaty and I was probably shaking, my teeth were chattering. I don't
even remember if my attorney was present.

Barry: So who's actually there?

Nick: One of the local police officers, I'll say officer G, as well as another agent of some kind. I
don't know if that was a DEA agent or the county attorney.

Luke: We have informants. Some people want to work with law enforcement because they want
to be a patriot. Some people think it's cool because they're like a spy in the movies. What I see
that's most troubling to me is a very common scenario in which the police compel an informant
to do certain operational acts because they have a tremendous amount of power and leverage
over a person. Now, the classic example of that would be when police have evidence that a
person has committed some kind of crime and they say hey look, we're willing to consider giving
you a break if you will do this thing for us.

Nick: At least as it was presented to me-- you know, you're faced with jail time, you're faced
with a serious fine, or you can work toward a deferred sentence where it never appears on your
record. Which was you know very important to me. It's an honor thing. But you have to do these,
these activities, perform these tasks.

Luke: In many cases you might just say-- that's just a free bargain. There's nothing wrong with
that. You know, it's a very libertarian approach. But in my view, this is far from a free bargain.
This is a situation which would rise to what you would call in contract law an unconscionable
contract.

Nick: I was seventeen years old, I was just in a pretty major accident, I'm going to college. This
was a pretty stressful time. And you wanted to take the path of least resistance. You know, from
what I recall, it was a split second decision. You're either gonna go this way or that way through
the justice system.

Luke: When we think about valid consent-- morally but binding consent-- in philosophy and
certainly in law, we think that you have to have a real choice in the matter. And in many of these
cases with informants, here's what the choice looks like. You can either engage in this very risky,
very dangerous operation on our behalf-- which, to be honest, could result in your death or
serious injury, or you can spend a long time in prison. That's basically the choice. So that's one
concern procedurally. The other concern is just the lack of knowledge. You have someone who
is untrained in many cases, and you're asking this person to engage in a dangerous act where
there are all kinds of risks that they could have no awareness of. On the other hand, the police
have this awareness, they have this knowledge, because they've been trained that way. They
know what it's like to go on an undercover operation, they know that things can go wrong.

Nick: I'd never been in this kind of trouble before. Probably deserved it. But bear in mind, this is
Waverly Iowa. So it's 10,000 people. At that point in 1995, I can say that drugs or
methamphetamine-- which is a common rural drug today--wasn't even that prevalent. In
Waverly, kids just aren't exposed to this.

Barry: The term confidential informant is a real misnomer for the pervasive practice of recruiting
young men and women, often underage, to engage in undercover operations (30:00) on behalf of
the police in the drug war. Confidential informant sounds like police are recruiting foot soldiers
in the drug trade who then provide information or testimony to bust someone, but that’s not what
it is at all. In all of the prominent cases that end up making the newspapers, they’re high school
or college kids who are busted on something, usually drug possession, and then who are
threatened with long sentences unless they use their youth as a cover to infiltrate some kind of
dealing ring known to police. And if you think about it, that makes sense; law enforcement
officers are older, a 17 year old boy or girl doesn’t look like a NARC. And it happens with law
enforcement at all levels, from school police to local police and federal agents. In Nick Taiber’s
case, there wasn’t even a drug dealing ring. The police wanted to target a local stoner.

Nick: He was a veteran. The most peaceful, calm person. He was known as being a marijuana
user. I don't even know if there were other drugs involved. Also very friendly in the community
and probably you know shared this with other people that were interested in partaking-- very
open minded is the best way to describe the individual.

Barry: How much did you know him at the time?

Nick: I only knew him by association of my older brother. He was probably 20 years my senior,
had one or two interactions, but it was quite known that you know this was his house. Kind of a
haven for intellectual thought, where people would maybe sit in a circle and talk about Thoreau,
or I think Jack Kerouac was kind of in vogue. At least his books, On the Road, I can remember
that. Probably one of the smartest people in the community, obviously a philosopher.

Barry: In this cold room with those-- officer G and whoever it was, the county attorney-- you
were tasked with in the next 2 months to provide actionable evidence?
Nick: Essentially it had to be done in two months because I was going to college in Iowa City,
two hours away, and they didn't have the plan or anything of that nature. I had to set it up, I had
to go collect information.

Barry: Oh wow. They didn't have an operation in mind, they just said-- it's like giving you police
work.

Nick: It was to find and discover actionable evidence. And I do recall putting on a wire I believe
and creating a superficial meeting through acquaintances that new this person. None of which
could know of course what I was trying to do. You know, going in and I put all of those people
in that situation. That's when it became just an awful violation of trust-- why are we targeting
this peaceful person that's never harmed anyone in their lives as far as I could tell? This was the
boogeyman in the eyes of law enforcement. If we can't get the big, criminal enterprise, by god
we're gonna go after anyone that we can so that we can get a score.

Barry: Luckily for Nick Taiber, the police's target in Waverly, Iowa, was not a danger to anyone.
That doesn't make it better. When the target is not a threat, why are you forcing some kid to
conduct covert operations on your behalf? And why would you need to do that if the target is a
threat? There have been a series of botched informant operations in the last ten years that follow
the pattern of Nick Taiber’s story, only with far worse results. Rachel Hoffman in Tallahassee,
Florida in 2008 was arrested on marijuana and ecstasy possession, and threatened with very
serious charges. In exchange for leniency, she agreed on doing a $13,000 drug and gun deal in a
sting operation set up by the police. The police lost track of her, and she was shot in the head by
the dealers. Andrew Sadek in North Dakota had a similar story, he was threatened with 40 years,
so instead he started buying drugs for police at North Dakota State College of Science. Andrew
disappeared, and was found in a river with a gunshot wound to the head and a backpack filled
with rocks. Andrew’s parents think he was murdered, the police say it was a suicide, Andrew's
way of trying to get out of his informant deal. His parents are still fighting the police in law suits
to this day.
Luke Hunt: I think if you look at the sort of harm, the risks, that you're subjecting a person to in
this situation, it really amounts to what you might describe as a form of legal punishment.
Because primarily at the end of the day it's a way for the informant to work off their misdeed,
their wrongdoing. My problem is that we get there through this vast discretion which I think
deviates from basic rule of law governance. (35:00) And it's also this kind of punishment that's
really outside the normal judicial process.

Barry (to Luke Hunt): Right, because the idea is that if we're going to think of the legal system as
determining culpability, what we've put in place is something like-- presumption of innocence,
trial, evidence, sentencing where there's people testifying. What you're saying is that the police in
their discretion is bypassing that entire system.

Luke: Yeah and another way to put it, and it may be a little bit unusual way to put it-- I agree
with everything you said-- also, people have a right to legitimate punishment. They have a right
to punishment.

But in a case like the use of an informant, you're sort of working off your crime, your
punishment, in this sort of off-the-books way, to sort of mitigate your wrongdoing. Your right to
being punished in a legitimate way is sort of being denigrated.

Barry: Nick went off to college with the informant deal hanging over him. He couldn’t deal with
it, his grades dropped, he was put on academic probation. After enough threats from the police to
deliver on his bargain, he decided to turn himself in, take whatever punishment he had coming to
him for operating a vehicle while intoxicated.

In the case of informants, I don’t think Hunt’s Rule of Law concerns are about the police
breaking the law at all. In fact, it's not about the law— it's about the principles underlying why
we want laws in the first place. We don’t like it when being a cop, or being rich, or being white,
gives you a special path through the criminal laws. The moral principle underlying this is that we
are a society of moral equals. When law enforcement uses leverage over an informant to offer
them alternative paths through the justice system, it places individuals in different moral
positions depending on their usefulness to the police. We also don’t like it when the state uses
leverage it uniquely has to force you to do something in their interests but contrary to yours. The
underlying moral principle is just Kant’s categorical imperative-- you don’t treat people as mere
means. What Luke Hunt calls the right to legitimate punishment just follows from these moral
principles. Insofar as the state is going to subject you to punishment, it has to do it on the
assumption of moral equality of its citizens, and in a way that doesn’t treat you as a mere means.

Nick: Yeah, in the next two months, despite the enormous pressure, I actually made an
agreement with myself-- I'm not going to do this. And so at that point it became a waiting game,
at what point do I get charged. There was threats along the way. They told me, ok, if you can't
provide the evidence against this person go after anyone you know. They already had me.

I wanted to get out of Waverly, that was my goal, without providing any more harm or any more
shame to my family. Of course I went to Iowa City as early as I possibly could. I wanted to get
away from this, with the order that O.K. when you're in Iowa City provide evidence.

Barry: Wait- you're kidding.

Nick: No. This followed me. They have you. They have you and there's no out clause.

Barry: So what started as an individual that they wanted to target-- you could wear a wire and go
into this guy's house and see if he would sell you drugs or something -- turned into wherever
you're going find actionable evidence about drugs generally?

Nick: Yes. I was just an extension of the police force at that point, with the duty to provide
evidence.. or else.

Barry: In his first year in college in Iowa City, with his informant deal hanging over him, Nick
withdrew from friends, started drinking; his grades dropped. He got into more trouble with the
law, public intoxication, minor in possession of alcohol, possession of a fake ID. Eventually he
was called into the Ombudsman office and threatened to be kicked out of school. So Nick made a
decision. He would turn himself in, take the full sentence he was threatened with in the first
place, take the mark on his record. His sentence turned out to be a weekend in jail and about
$5,000 in fines.

Nick: And at that point it was it was done. It was probably the the most relief I've I've had in my
life, because you know the the weight of the criminal justice system was off my shoulders. I paid
my my fine to society, and you know now at rest about my record for the rest of my life. but you
know that's something that I own.

Barry: Have you encountered the people involved in all of this since it all went down and it was
over?

Nick: I have. I've encountered my attorney, the judge. (40:00) I don't fault anyone in this
situation. You know, I knew the daughter of Officer G. It's a small town. And you know it's just
something that I'll never speak of to them. I don't think of them any less. They're all honorable
people, they were just tasked with being part of a dishonorable system.

Barry: Maybe the one last thing I'll ask you is if you would have any advice to a seventeen year
old, eighteen year old, nineteen year old who finds themselves-- usually the story is they did
something bad, they made a mistake, they're caught up in the legal system and they're being
given an offer to be an informant in the drug war. What would you say to them? What do you
think they should think about?

Nick: I'd first invite anyone to reach out to me. I wish there was an informant support group,
where it could be done on a confidential basis. Right now unfortunately there's no resource that
somebody can look to other than maybe their own attorney, and even the attorney might not be
operating in their best interest because they might not even know what the options are. The
advice--seek help. Frankly I don't know where that is. I'm open but nobody's reached out to me.
Barry: Because you're not allowed to talk.

Nick: You're really not allowed to talk. This is a shady underground. And I want to believe that
attorneys and the agents of this war are turned into the effects, but when they're measured on
how many drugs they've collected or how many assets they've seized, the actual human impact is
dismissed or ignored.

Barry: Nick Taiber is a City Councilman in Cedar Falls, Iowa. You can find him at Nick
Taiber.com. Luke Hunt’s book is the Retrieval of Liberalism in Policing. You can find a link to
both on our website.

Let me end with one last story from Internal Affairs, which brings our two threads together. I just
want to give a warning here, this case involves a graphic description of a sexual crime, and is not
appropriate for young children and may be upsetting to others. If you want to skip it, you can end
the show right here. There was a pretty egregious case of an Internal Affairs office in Fort
Wayne Indiana using an informant to try and bust another cop. Fort Wayne police had busted a
woman, named Amy, for a cocaine offense. They threatened her with 40 years in prison, or she
could do an operation with them. Internal Affairs wanted to set up a sting on a cop named
Nathan. Amy was to offer Nathan oral sex in exchange for money and then they would bust
Nathan for soliciting a prostitute. Internal Affairs instructed Amy to perform the oral sex on
Nathan, and gave her a napkin to spit into to preserve the evidence for them. Amy did as she was
asked, and Internal Affairs arrested Nathan on the charges. Amy was then so disgusted by her
actions, that she didn’t cooperate any further. Both she and Alexander sued the police department
for civil rights violations, and lost. It is one of those few cases where someone asked the courts
to draw a line that police shouldn’t be able to cross in undercover, sting, and information
operations.

The courts decided that there is nothing in the constitution that draws the line at making a
woman perform oral sex in a sting operation exchange for leniency. They wrote that all
informants agree to risky activity in exchange for leniency; this is just another such activity. If
you don’t like it, leave the offer. So I decided to ask Robert Bryan, who worked in Internal
Affairs all those years ago, what he thought of the case.

Robert: Way too far with that. I would have never done that. I would have never set something
up like that, no.

Barry: the interesting thing about this kind of case is that the courts actually found in favor of the
police department. So the judgment that they went too far is actually a professional judgment of
yours. It's not actually like a legal judgment cuz it turns out legally the courts actually thought it
was okay. Now that professional sense of ethics that you have that it's too far, what do you how
would you articulate why that's too far in this case to somebody who's like say going into IAB or
something like that?

Robert:: I would never have even brought that to my commanding officer saying hey captain,
here's an idea I have, let's see if we can get our informant to perform oral sex and store the
evidence. I would never have even gone, think of going to someone, with an idea like that.
(45:00)

Barry: So that's so clearly over the line. What's fascinating to me is just what prevents a police
force, a particular unit, the IAB unit, from crossing the line versus not, when the law, it seems
like from this ruling, because ruling have precedence, say that you can go about that far? I'm
curious about what restrains the exercise of power like that?

Robert : I think a lot of it has to do with a person's own ethical and moral line. There are things
you just know are right and you know are wrong, and there are certain things you don't need
some type of law book to tell you that's not a good thing to do.

Barry: Robert Bryan, the tired NYPD Police Officer. His book is C-Case: The unlikely journey
from Transit Cop to Internal Affair Bureau Commander. Luke Hunt is now Assistant Professor
Philosophy at the University of Alabama. His book is the Retrieval of Liberalism in Policing.