12

This happened in Virginia, many years ago. Nothing happened, but I have a hypothetical question.

My friend and I were out driving in his car. He drives a classic muscle car, a 1969 Cutlass Supreme 442 convertible. A marked police squad car pulls up next to us at a red light. The in-uniform officer in the car was - and I feel it was genuine - geeking out over my friend's car. He then asked if we wanted to race (drag race). My friend thanked him and said no. We then drove off - normally - at the green light.

Obviously, nothing happened. However, what if he said yes? The light turns green, he floors it, and then officer pulls him over. While my friend does like fast cars, he is actually surprisingly responsible with them and has no history of anything other than a few speeding tickets. Would that be entrapment?

Improve this question
11
  • 19
    "he is actually surprisingly responsible with them and has no history of anything other than a few speeding tickets" Your friend would do well to alter his behavior before he ends up in a serious accident. Collecting multiple speeding tickets is a sure sign of non-responsible driving. Nobody has "a history of anything", until they do, and every driver thinks they know road safety better than the local authorities who set the limits.
    – UJM
    Commented Sep 5 at 11:33
  • 16
    @UJM That's a bit naive, since those "local authorities" are sometimes known to place unexpected speed limit signs primarily for revenue generation rather than safety. It's a stretch to say "a sure sign of non-responsible driving" without knowing the circumstances and especially the total length/scope of driving record. Yes, no tickets is always better than some -- but say if a driver, over decades of heavy travel in diverse places, falls for a few unfamiliar speed traps but has never had an accident/collision, that sounds consistent with being a responsible driver.
    – nanoman
    Commented Sep 5 at 14:55
  • 7
    @UJM Yes, mother.
    – bdb484
    Commented Sep 5 at 15:43
  • 6
    @UJM The reason I mentioned the speeding tickets is to show he is not inclined to drag race, as he has no tickets for racing, reckless, etc. Everybody has exceeded the speed limit many times in their life, whether or not they received a ticket for it.
    – Keltari
    Commented Sep 5 at 16:11
  • 10
    "Collecting multiple speeding tickets is a sure sign of non-responsible driving." - That seems like a bit of an overreaction, especially without knowing how many speeding tickets over what period, for what speed, and in what situation.
    – marcelm
    Commented Sep 5 at 17:32

2 Answers 2

Reset to default
16

The defense might be "entrapment", or might involve a slight different defense that would protect the drag racing driver.

Under the U.S. Supreme Court cases of United States v. Laub, 385 U.S. 475 (1967), Cox v. Lousiana, 379 U.S. 559 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), a defendant may not be punished for actions taken in good faith reliance upon authoritative assurances that he will not be punished for those actions.

Entrapment doesn't involve a belief that someone has authoritatively assured you that you won't be punished. It usually (but not always) also involves a lack of knowledge that the people egging you on are government agents. As explained at the link above:

"Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) governmentinducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

It is not entirely clear which of these doctrines would apply.

Improve this answer
17
  • 13
    So it's more likely to be entrapment if the police officer convinces you to race him when out of uniform, then pulls out his badge and arrests you.
    – Barmar
    Commented Sep 5 at 0:01
  • 1
    Interesting. And coming from SCOTUS too.
    – Keltari
    Commented Sep 5 at 0:36
  • 1
    @ohwilleke Am I incorrect in detecting that that distinction is just customary, though? The cited 2 elements seem to be entirely present if a uniformed police officer tries to convince an otherwise uninclined person to take part in drag racing, even if the unlucky drag-racer never thought to ask "and I won't be arrested?"
    – user99478
    Commented Sep 5 at 2:56
  • 1
    @user99478 It might hinge on whether such an assumption counts as "authoritative assurances" in the judge's opinion.
    – Barmar
    Commented Sep 5 at 14:52
  • 2
    @user99478 That's why I hedged and said one or the other. A uniform isn't necessary for entrapment, but is a much more typical fact pattern.
    – ohwilleke
    Commented Sep 5 at 15:31
1

As a retired LEO I have a few thoughts about this. Under the U.S. v Laub, Cox v Louisiana, and Raley v Ohio cases cited here, one would have to have act upon a "good faith reliance" from a "authoritative assurance [emphasis added]" that they believe that they wouldn't be punished for committing a crime. I think that it would be quite difficult to convince any judge that 1) the officer enticed you to race with impunity, and 2) that a reasonable person would believe that an officer that was actively encouraging you to race on the public roadways, thereby placing the public in danger, had any such authority to do so. I think that you lack both a good faith reliance (you know it's wrong and you know that the officer is wrong for encouraging it) and an authoritative assurance (don't think an officer who is clearly acting outside of his authority can provide any form an an assurance that is "authoritative"). Imagine if the officer told you to rob the bank with him and he tells you that it's okay because he's an officer. Just doesn't fly.

Entrapment doesn't work either. This concept is pretty simple. The government actively encourages you to take an illegal act that you wouldn't have taken absent that persuasion, with the intent of prosecuting you for it. A significant question here is whether the officer is acting as an agent of the government. Most of the times the answer would be yes, but in this instance the officer would clearly be operating outside of the authority vested in him by the government. Even when you view the evidence in a manner that is most favorable to the driver, which I think the law would require in most places, I don't think you can overcome significant obstacles in this defense.

If you add to the scenario a bit it becomes a little easier to see how this would play out in reality. Imagine the cars racing down the highway and one of them crashing into another vehicle, killing one of the occupants. Being that both individuals were involved in a "crime" that resulted in a death, both individuals are now responsible for that death, regardless of the fact that one of them happens to be an on-duty officer. You're going to need more than a "but he told me to" defense.

Improve this answer
2
  • interesting view. I do see what you mean by saying we know drag racing is wrong, regardless of what the officer says. However, I think its safe to say when a police officer tells you to do something, most people will do it. Now he didnt tell us to drag race, but I do think its not unreasonable for people to think that it was implied. That being said, if a police officer said go ahead and jaywalk, I think I would feel ok doing it. However, if the officer said murder someone, I wouldnt. Obviously, this situation lies in between.
    – Keltari
    Commented Sep 6 at 19:59
  • And you said it’s risky because the officer could lie in court and would be believed. @Keltari: In traffic, a police officer can see a situation and override the rules. So if he tells you to cross the road, then it’s not jaywalking. Like you can drive through a stop sign if you have a green traffic light and you can drive through a red traffic light if an officer tells you.
    – gnasher729
    Commented Sep 7 at 6:07

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .