Outrageous Government Conduct

The Florida constitution provides that no person should be deprived of life, liberty, or property without due process of law. Article I, Section 9, Florida Constitution. Florida courts have dismissed criminal charges against defendants under various scenarios where a defendant was denied due process. Several cases in Florida support dismissal for outrageous government conduct.

• State v. Williams, 623 So. 2d 462 (Fla. 1993) (government manufacturing drugs)
• State v. Glosson, 462 So. 2d 1082 (Fla. 1985)(contingency fees for confidential informants)
• Cruz v. State, 456 So. 2d 515 (Fla. 1985) (entrapment)

In Crocker v. Pleasant, the Florida Supreme Court held that a substantive due process violation may arise when governmental action “shocks the conscience.” 778 So. 2d 978, 983 (Fla. 2001). The United States Supreme Court further explains:

“As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision–making in this uncharted area are scarce and open–ended. [Citation omitted.] The doctrine of judicial self–restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. It is important, therefore, to focus on the allegation in the complaint to determine how petitioner described the constitutional right at stake…”

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992).

Outrageous government conduct occurs when the actions of law enforcement officers or informants are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–432 (1973).

“[T]he [g]overnment’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013), quoting United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). This is “an extremely high standard.” Smith, 924 F.2d at 897. In fact, there have been only two reported federal appellate decisions in the entire country that have reversed convictions because of “outrageous government conduct.” Hullaby, 736 F.3d at 1262 (citations omitted). The issue in these cases is whether the agents’ conduct was “so grossly shocking and so outrageous as to violate the universal sense of justice,” see Hullaby, 736 F.3d at 1262. Where outrageous government conduct is alleged, every case must be resolved on its own particular facts and circumstances. The courts have developed no bright lines dictating when law enforcement crosses the line between what is acceptable and what is outrageous. Id.

Factors Relevant to Finding the Government’s Conduct Outrageous

A due process violation resulting from outrageous or egregious police misconduct can rise to a level warranting dismissal of criminal charges. The remedy of dismissing the charges exists to serve as a deterrent to other law enforcement offices to prevent other or continued police misconduct and to protect due process. Due process of law is a constitutional guarantee of respect of personal rights which are “so rooted in the traditions and conscience of people to be ranked as fundamental.” Snyder v. Com. Of Mass, 291 U.S. 97 (1934); Malinski v. New York, 324 U.S. 401 (1945) even toward those charged with the most heinous offenses.

Judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice, and is not to be based upon the idiosyncrasies of a merely personal judgment. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). “[T]his court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.”

In State v. Cannon, 57 So. 3d 892 (Fla. 4th DCA 2011), the court said, “[G]overnmental misconduct that violates a defendant’s due process rights under the Florida constitution requires dismissal of criminal charges. “The rule applies regardless of the defendant’s predisposition and serves to check outrageous police conduct. This rule is narrowly applied and is limited to those instances where the government’s conduct so offends decency or a sense of justice that the judicial power may not be exercised to obtain a conviction.” State v. Taylor, 784 So. 2d 1164, 1167 (Fla. 2d DCA 2001) (citing Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205, 96 L. Ed. 183 (1952); Malinski v. New York, 324 U.S. 401, 416-17 (1945).

Examples of Cases Dismissed for Outrageous Conduct in Florida

For example, in State v. Williams, 623 So. 2d 462, 465 (Fla. 1993), the Florida Supreme Court held that the illegal manufacture of crack cocaine for use in “reverse sting” operations constituted governmental misconduct contrary to the due process clause of the Florida Constitution.

In Farley v. State, 848 So. 2d 393, 398 (Fla. 4th DCA 2003), the court held that that law enforcement’s manufacture of child pornography as part of an email solicitation, coupled with promises of protection from government interference, was a violation of due process.

In Soohoo v. State, 737 So. 2d 1108, 1111 (Fla. 4th DCA 1999), the court held that an undercover agent’s consignment arrangement for “the sale of drugs represents governmental conduct which this court cannot condone.”

Claims of Outrageous Conduct Reviewed De Novo on Appeal

The appellate court reviews de novo the trial court’s legal conclusion as to whether the facts constitute a due process violation. State v. Myers, 814 So. 2d 1200, 1201 (Fla. pt DCA 2002). “Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent. 11 Bist v. State, 35 So. 3d 936, 940 (Fla. 5th DCA 2010).