Entrapment is a defense available to defendants as a remedy for over-zealous prosecutions.  The defense is defined slightly differently in Kansas and Missouri.  In Missouri, entrapment is defined in R.SMo Section 562.066:

1.  The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.

2. An “entrapment” is perpetuated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.”

In Kansas, entrapment is defined under K.S.A. 21-3210, which states:

A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

(a)   The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or

(b)   The crime was of a type which is likely to occur and recur in the course of such person’s business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.

A defendant wanting to use this defense would need to request it in a jury instruction if his case were tried to a jury.  If illegal conduct is induced or solicited, then it can be viewed as entrapment.  Entrapments happen more often than is commonly supposed.  When permitted as jury instructions, they can be used to negate the specific intent of a crime.

The Two Types of Entrapment

So we have stated the basic elements of entrapment as they appear in Kansas and Missouri statutes.  But a better way of understanding how entrapment works in the real world is to appreciate that there are two different “flavors” of entrapment: traditional entrapment, and entrapment by estoppel.  How do they differ?

Traditional Entrapment

Traditional entrapment is what most people think of when they hear the term.  Undercover sting operations usually come to mind.  In traditional entrapment, we normally see the following things happening: (1)  the government agent secretly and intentionally induced a borderline or unpredisposed defendant to slip into a crime; (2) the defendant is not aware of the government’s involvement; (3) the defendant knew his conduct was illegal and didn’t expect to get caught.  Basically what is happening here is that the defendant is claiming “I was secretly induced into doing something even though I knew it was illegal.”

Entrapment by Estoppel

But there is another type of entrapment.  Entrapment by estoppel is something quite different.  Here, a defendant actually intends to commit the illegal conduct, but he has been assured by a government official that the conduct in question was acceptable.  Essentially, the defendant relies on some mistaken interpretation of the law given to him by a government official, and is later prosecuted for it.  These are the features of entrapment by estoppel:  (1)  the government mistakenly interprets the law; (2) the defendant relied on the government’s advice; and (3) the defendant believed his conduct was legal, and never contemplated prosecution.

As an example, consider a classic entrapment by estoppel case from 1965, Cox v. Louisiana, 379 U.S. 536 (1965).  In this case, police officers had permitted defendant Cox to demonstrate near a courthouse.  He was later prosecuted and convicted for picketing near the same courthouse.  The Supreme Court threw out the conviction, relying on previous entrapment by estoppel case, Raley v. Ohio, 360 U.S. 423 (1959).  The Court stated that “after the public officials acted as they did, to sustain [Cox’s] conviction for demonstrating where  they told him he could would be to sanction an indefensible sort of entrapment by the state–convicting a citizen for exercising a privilege which the state had told him was available to him.”

We should mention here that many states have adopted a related type of defense:  mistake of law.  “Mistake of law” is a defense to a crime if a defendant reasonably relies on the advice of a governmental figure, and it later turns out that this reliance was misplaced.  Another defense related to entrapment by estoppel is the so-called “good faith” defense, often seen in tax fraud cases:  a person claims that he relied in “good faith” on something he reasonably believed was the law.

The problem with “mistake of law” and “good faith” is that they often do not quite satisfy the fairness demands of due process.  Entrapment by estoppel is a true constitutional defense, arising from case law.  Unfortunately, it is a defense that is not as well known as it should be.  But there are many situations where entrapment by estoppel can be deployed as part of a comprehensive defense strategy.  It has a compelling line of Supreme Court cases to its credit, and because it is grounded in fundamental fairness, it is likely to resonate with juries and judges.

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