The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

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