New forfeiture reform legislation introduced in Michigan.
"Jacque Sutton didn’t commit any crime but police impounded his 1989 Mustang GT and charged him $900 to get it back. His offense was attending a party in 2009 at an art gallery in Detroit which didn't have a permit to hold an event with dancing and DJs. Police raided the place and gave everyone tickets for illegal occupation, which were later waived. But Sutton's car was seized and he couldn't get his property back until he paid the money as a result of Michigan's asset forfeiture law.
He's not alone. Since 2001, Michigan agencies have seized at least $250 million worth of property and money from citizens. While much of what's seized comes from criminals, a significant amount of assets and a number of cases involve people like Sutton. A newly introduced bill would prevent many of those situations. House Bill 5213, sponsored by Rep. Jeff Irwin, D-Ann Arbor, would prohibit civil asset forfeiture in Michigan unless a person is convicted of a crime...."
Steve Klein at the Wyoming Liberty Group writes:
...Our state law requires very little reporting from the Attorney General’s Office about the use of civil forfeiture, and the office has never even compiled these reports. The limited data available shows that the use of civil forfeiture in Wyoming has declined in recent years, but also indicate police agencies may be seizing far too much property without good cause. Whatever the circumstances, Wyoming law should be reformed to prevent future abuses.
The war on drugs is a touchy subject, but state law must not provide police with loopholes through constitutional protections of due process and property rights. Our civil forfeiture law can be reformed in numerous ways that will close these loopholes without hindering law enforcement from seizing narcotics or actual tools of the drug trade. Wyoming can become a leader in tough, but fair law enforcement. This is a great place to start.
Wyoming's civil forfeiture laws are pretty bad. According to the Institute for Justice in 2010:
Wyoming has horrible civil forfeiture laws, with an F law grade. The state’s final grade is pulled up to a C only by limited use of equitable sharing (an evasion grade of A) to date. The government can seize and subsequently forfeit property with just probable cause that it is subject to forfeiture. This is the lowest standard, far easier for the government than proving criminal guilt beyond a reasonable doubt. A property owner who wishes to claim an innocent owner defense bears the burden of proof, effectively making owners guilty until proven innocent. All of the proceeds from civil forfeiture are distributed to the state Attorney General’s asset fund. In turn, those funds are used as matching funds for federal drug enforcement grants. Finally, although officials are required to collect information on the use of forfeiture, they did not respond to requests.
Klein's brief "Reforming Civil Asset Forfeiture in Wyoming" is available here on SSRN, and includes these sensible recommendations:
There is some evidence that police agencies in Wyoming abuse civil asset forfeiture, and the law should be reformed to prevent abuse and better protect innocent citizens. Importantly, this can be achieved without sacrificing the effectiveness of the law through several amendments to the Controlled Substances Act. The most important change is to raise the level of proof required in a forfeiture hearing to at least a clear and convincing standard of proof. Other reforms to consider include bolstering due process by eliminating the prospective element from seizure, placing all revenue from seized assets in a general state fund, and ending Wyoming’s participation in equitable sharing with the federal government. At the very least, transparency should be extended to require police agencies to account for all revenue acquired through the civil forfeiture process.
An investigation into possible criminal misconduct by the Rockingham County District Attorney James Reams has implicated misuse of the Rockingham County Asset Forfeiture account. As James Kimble at the New Hampshire Union-Leader reports:
A forfeiture account once controlled by embattled Rockingham County Attorney James Reams is being scrutinized as part of the state and federal investigation into his office, the New Hampshire Union Leader has learned.
The Rockingham County Attorney Forfeiture Account has reaped thousands of dollars in federal asset forfeiture money and court-ordered fines from corporations that were prosecuted for state liquor violations or gambling offenses.
Reams' office has taken in roughly $139,890 in fines and seized cash from liquor and gambling prosecutions since August 2005, according to a review of court records.
Thousands of dollars of that money has been doled out to local police departments that aided in investigating the liquor-offense or gambling cases, while also covering expenses at the county attorney's office for staff training, equipment and office supplies, county finance records show.
Attorney General Joe Foster suspended Reams on the night of Nov. 6 pending the outcome of a state and federal investigation into management issues at his office.
Bank statements for the forfeiture account — obtained through a Right-to-Know request — show that $25,241.91 in electronic payments was made to an American Express card dating back to 2007.
County Commissioner Kevin Coyle said that the county has no detailed statements to the American Express card, and has not asked for one to date.
"As far as we know, it's not a county credit card," Coyle said.
Reams acknowledged in an interview that the credit card belongs to him.
He said the money paid to the credit card reimbursed him for travel expenses incurred while attending conferences held by the National District Attorney's Association.
"If I went to a meeting, it would cover airfare, hotel, per diem," Reams said. "A check would be written directly to the credit card company. I fronted all of those expenses and got reimbursed."
Last year, the account made $8,170.78 in electronic payments to the American Express card, bank records show.
Reams said he has maintained detailed records of the reimbursements, and that all uses of the money are permissible through federal guidelines for asset forfeiture funds. He said that his participation in the NDAA has brought more money back to New Hampshire in training than the cost of going to conferences, and has saved county taxpayers thousands.
Reams said the travel expenses only represent a small portion of the account's holdings.
"The vast majority of the money went right back to police departments," he said.
Although New Hampshire law allows law enforcement to retain 45% of the proceeds of forfeitures accomplished under state law, proceeds of federal asset forfeiture proceedings are only regulated by Department of Justice rules, which allow for expansive uses of forfeiture funds that may not be legal or sanctioned by state law. Indeed, as the Kimble finds, the existence of a forfeiture fund at the Rockingham County District attorney's office was rather unusual:
The Rockingham County Attorney Forfeiture Account — which also has a checkbook bearing the same name — is unique in New Hampshire.
The state's nine other county attorneys said in interviews that their office has no such account.
They also said the kind of liquor and gambling cases that in part funded Rockingham County's Forfeiture Account are rarely, if ever, pursued in their jurisdiction.
"I have been prosecuting for 31 years, and I've had one gambling case," Merrimack County Attorney Scott Murray said.
Murray and other county attorneys across the state questioned whether they had the legal authority to collect or spend money from such an account.
"The money we spend is approved by the county delegation," he said.
It's refreshing (and rare!) to find a state where prosecutors don't view their offices as revenue centers, and decisions about the use of public money are the exclusive province of an elected legislature. While we don't yet know precisely the nature of the misconduct surrounding the Rockingham County District Attorney's Office, we can say that the New Hampshire legislature should seriously consider abolishing civil forfeiture entirely, along with the ability of state law enforcement to access federal forfeiture funds through the DOJ's Equitable Sharing Program. If the federal government does choose to share proceeds of federal forfeiture with the states, state legislatures should control those funds, and subject those revenues to the normal appropriation process.
On December 11, 2013, the DOJ's Inspector General Michael Horowitz sent Attorney General Eric Holder a memorandum titled "Top Management and Performance Challenges Facing the Department of Justice - 2013". One of the memo items discusses "Protecting Taxpayer Funds from Mismanagement and Abuse", a section of which discusses the DOJ's asset forfeiture fund:
...Of similar significance to the taxpayer, the balance of the Department’s Assets Forfeiture Fund, which is funded by law enforcement asset forfeitures, rose from $2.9 billion in FY 2011 to $4.4 billion as of FY 2012. A portion of these funds is available to be shared with state and local law enforcement agencies for permissible law enforcement uses, and from FY 2011 to FY 2012, these “equitable sharing” payments increased from $440 million to $681 million. While this program represents an important opportunity for the Department to collaborate with state and local partners, it also creates an opportunity for abuse, as demonstrated by a recent OIG investigation of a local law enforcement entity that resulted in the recovery of $1.8 million in misused equitable sharing revenues. As a result of this investigation, the Department is revising its policies to prevent similar abuses in the future.
While the OIG memo does not identify the "local law enforcement entity", a search of the OIG's Equitable Sharing Reports indicates that the offender is most likely the Oklahoma State Highway Patrol:
In addition, we identified $1,697,433 in unallowable questioned costs and $210,216 in unsupported questioned costs related to expenditures and the use of seized tangible property including: (1) construction and renovation costs; (2) salaries, benefits and overtime paid to OHP non-law enforcement personnel; (3) fees paid to contractors; (4) fuel and other vehicle expenditures; (5) pickup trucks used by Oklahoma Department of Public Safety non-law enforcement personnel; and (6) use of a seized semi-tractor and trailer for non-law enforcement purposes.
It is also worth noting that the OIG only audited 3 Equitable Sharing recipients in 2013, despite the size of the program. The OIG's report also does not mention the public scandals surrounding the Florida law enforcement agencies of Bal Harbour and Sunrise, involving the misuse of tens of millions of dollars in Equitable Sharing funds.
It is significant that the DOJ's Equitable Sharing program now shares over half a billion dollars with state and local law enforcement. Law enforcement participation in federal Equitable Sharing is largely unregulated by state laws and represent an easy revenue opportunity for state and local law enforcement, who can send seized property through federal forfeiture, often circumventing more restrictive state property seizure and forfeiture disposition statutes. It is imperative that Congress act to restrict or end the Equitable Sharing program or that the states begin regulating the participation of their law enforcement agencies in order to end undue federal infringement on state sovereignty.
Jason Vallee reports at the Berlin Patch:
Members of the Connecticut Police Chiefs Association have recognized the House Majoirty Leader for his role working to enhance public safety by fighting for local police departments to keep their seized assets.
When the state was looking for ways to reduce debt over the past couple years, Aresimowicz stood tall against those who suggested using assets seized in police investigations to balance the budget and remained steadfast that a portion of the assets go to local departments instead.
These efforts have now brought Aresimowicz, D-Berlin and Southington, into the spotlight as he was awarded with the Connecticut Police Chiefs Association’s 2013 Legislative Award on Thursday.
“Joe Aresimowicz has distinguished himself over the years as a true champion of the law enforcement community,” said Southington Police Chief Jack Daly, president of the Connecticut Police Chiefs Association.
“I’m honored to be presenting this award to him as the President of the Connecticut Police Chiefs Association—and as the the Chief of one of the two towns he represents. We in Southington are very fortunate to have him representing us in Hartford.”
Daly said the award is given to legislators that have stood out and strongly supported police issues. Aresimowicz was singled out for his leadership in protecting the ability of Connecticut’s local police departments to keep a portion of seized property and assets, he said.
Aresimowicz said that municipal police departments depend on the funds from the seized assets to fight crime and balance their budgets.
“Berlin is fortunate to have Joe Aresimowicz as our state representative. He has a great concern for public safety and has repeatedly demonstrated his support for our department and law enforcement in general,” said Berlin Police Chief Paul D. Fitzgerald.
It's a fundamental duty of legislatures to control the purse strings for executive branch agencies. When legislatures fall down on this important duty, as the Connecticut legislature has under the direction of Joe Aresimowicz, citizens are deprived of a fundamental check on their ability to constrain the behavior of the executive branch through their representatives. Moreover, this unappropriated revenue stream gives law enforcement special interests a direct financial incentive in the laws that create forfeitable revenue. This turns cops into de facto legislators, with powerful incentives to manipulate the political process. As Law Enforcement Against Prohibition speaker Diane Goldstein notes:
Law enforcement has long relied on the cliché "we don't make the laws, we just enforce them" when called to task for their role in enforcing unjust laws. For many years this was the case, but in the last two decades the increased lobbying of law enforcement organizations – some motivated by considerations other than upholding the law or improving public safety – has undermined the role of police professionals by making them just one more special interest group.
Lobbying by law enforcement organizations is big business. It has contributed to the policy of mass incarceration as well as misprioritized law enforcement resources that emphasize the prosecution of drug offenses over violent crime. This lobbying has diverted critical fiscal resources from competing governmental services like education, health care and public infrastructure. All this has been done under leaders who are not working as stakeholders and collaborative partners with the voters, but simply protecting their own self interests.
It is up to the Connecticut Legislature to take back their legislative powers of the purse by ending the practice of funding law enforcement through asset forfeiture. Without this reform, Connecticut's citizens will continue to have their rights eroded by law enforcement special interests.Read more
Mike Stucka at The Telegraph reports:
A Bibb County mother is protesting the seizure of her family minivan and about $15,000 she said she and her husband were saving to buy a home.
Though Oshun Lowe filed her objection to the forfeiture of the money and her 2005 Toyota Sequoia on Nov. 15, prosecutors formally filed for the forfeiture on Friday.
Prosecutors say the property was seized, along with more than 10 pounds of marijuana, from the Bay Point Drive home of Lowe and Perron Vashon Griggs near Lake Tobesofkee. Prosecutors said drugs were found Oct. 16 after Bibb County deputies searched her home.
Lowe said in her court filing that she’s a single mother with two minor children who needs the minivan and money.
She said the money had been saved over a period of time, and the minivan was not purchased with illegal proceeds or used to transport any illegal contraband.
Court records do not list any current charges for Griggs, who also does not appear to be in Bibb County’s jail. The records indicate he was arrested when the marijuana was found, and prosecutors and Griggs both agreed to bond of $30,000. Griggs is not allowed to contact any witnesses in the case.
Lowe and Griggs have 30 days to file an answer to the new seizure motion, court records suggest.
Georgia's asset forfeiture laws are very bad. The Institute for Justice gave Georgia's forfeiture laws a D-, noting that:
Georgia has terrible civil forfeiture laws and uses equitable sharing extensively. Under state law, depending on the property, the government need only establish probable cause or a preponderance of the evidence that the property was connected to illegal activity to forfeit it. You bear the burden of showing that the property is not derived from illegal activity or that you are an innocent owner. Even worse, law enforcement keeps 100 percent of the proceeds from any sales of seized property, which creates a strong incentive for law enforcement to seize property even in situations where it may not be warranted. And public oversight is limited: In response to requests, Georgia provided only one year of forfeiture data, for 2001.
A search of GeorgiaLegals.net found that there have been 18 forfeiture actions filed in Bibb County court in 2013.
From a Simi Valley Police Department press release:
The Simi Valley Police Department recently acquired a new and improved SWAT vehicle called a BearCat©. BearCat vehicles are typically referred to by law enforcement agencies throughout the world as being armored rescue vehicles with their primary use being to transport tactical officers to and from hostile situations and to assist with the recovery and protection of civilians in harm's way during violent or hostage incidents or encounters with armed offenders.
The Simi Valley Police Department’s BearCat was manufactured by Lenco Armored Vehicles in Pittsfield, Massachusetts outside of Boston. Lenco built the Police Department’s BearCat based on the specific needs and requests of the Department’s SWAT Team. The vehicles specific abilities and accessories are not being released so the safety of the officers that operate it won’t be compromised. The Department is comfortable in saying that the BearCat houses a diesel engine capable of quickly moving this 20,000 pound vehicle which provides armored protection from a variety of firearms including handguns and rifles. Although the Simi Valley Police Department is the last agency in Ventura County to obtain this unique law enforcement tool, the wait was well worth it when you consider it has the latest of safety features available and was paid for through the use of the City’s Asset Seizure Program funds that weren’t available a few years ago. The benefit of waiting was that the BearCat’s $280,000 price tag was paid for at zero cost to tax payers.
In its second day with the Police Department members of the SWAT Team took the BearCat to the Ronald Reagan Presidential Library for the Reagan National Defense Forum. Its presence was to ensure the safety of the dignitaries and attendees while the SWAT Team was on stand-by at the event. A week later, the BearCat was successfully deployed to a local park for a suicidal subject who had locked himself in a vehicle, was reported to be armed with a handgun and refused to surrender to law enforcement on scene. The use of the BearCat allowed the officers to safely approach the vehicle and detain the subject for a mental health evaluation. This incident marks the highly effective and diverse use of this new safety tool that assisted law enforcement personnel during a dangerous incident that resulted in no one being injured.
Duane Barbati at the Alamogordo News reports:
The Otero County Sheriff's Narcotics Enforcement Unit arrested a 21-year-old Denver woman for attempting to take 58 Ecstasy pills through the U.S. Highway 54 South Border Patrol checkpoint, Sheriff Benny House said.
House said Gabriela Avila is charged with one count of second-degree felony trafficking a controlled substance by possession with the intent to distribute and civil forfeiture (a 2004 Kia car).
Avila was jailed at the Otero County Detention Center in lieu of a $20,000 no-10 percent bond pending her appearance in court.
House said NEU agents responded to the U.S. Highway 54 South Border Patrol checkpoint in reference to Avila around 2 a.m. Dec. 2.
Upon agents; arrival, House said they learned from Border Patrol personnel that Avila, of Denver, entered the checkpoint around 10 p.m. Dec. 1 while driving a 2004 Kia with Texas plates.
He said due to Avila's nervous behavior, Border Patrol agents directed Avila to a secondary inspection area.
House said a Border Patrol K-9 unit alerted agents to the presence of narcotics inside the vehicle.
"Avila had admitted to only having marijuana in the vehicle, with no other contraband being present inside the Kia," he said. "Upon further inspection of the vehicle, Border Patrol agents located a jar of peanut butter on the floorboard of the passenger seat. After further inspection, two black envelopes made of tape had been stuffed in the peanut butter of the jar. Between the two envelopes, agents found about 58 orange pills."
House said Border Patrol agents used a narcotics field test kit on the pills.
"The pills tested positive for MDMA -- or Ecstasy," he said. "Border Patrol did advise Avila of her Miranda Rights, but she agreed to speak with agents without the presence of an attorney. Avila did admit to purchasing the Ecstasy pills in El Paso and was en route to Denver with the contraband. Avila was turned over to the Otero County narcotics agents. The 2004 Kia was also seized pursuant to New Mexico forfeiture laws."
The following YouTube videos by Robert Trudell detail a bizarre confrontation with a US Border Patrol interior checkpoint in Chula Vista. I've posted a couple videos, but there appear to be more, if you click through to Trudell's Youtube channel.
I'd be interested in hearing more about this case. You can contact me at Eapen@ForfeitureReform.com
On November 1st, 2013, Americans for Forfeiture Reform filed a brief of amicus curiae in Support of Defendants-Appellants and Reversal of the Judgment Below, United States v. Moser, No. 13-55266 (9th Cir. Nov. 1, 2013), ECF No. 20. AFR first covered this appeal when it was docketed in February 2013.
Wealthy business leaders from “as far south as Peru” and “as far north as Canada” have been converging on the suburban town of Sunrise, FL recently, and it’s not because of great prices at their outlet mall. No, the Sunrise police have been offering kilos of cocaine at extremely low prices. $18-24,000 appears to be their general asking price range per kilo of cocaine, but Sunrise Police have been extremely flexible on giving two-for-one or consignment deals, attracting buyers from all over the country and abroad at a time when wholesale cocaine prices are extremely high (up to $37,000 per kilo in Miami, according to the DEA), prompting many potential traffickers to make the trek to south Florida for a chance to score big in the drug game. So what exactly is the incentive for Sunrise PD to invite potentially violent drug traffickers to meet at popular family restaurants (McDonald’s, Chili’s, Steak ‘n Shake) in their quiet suburban town despite protests from local mothers? The answer is as simple as it is horrifying: the promise of a quick and easy payday due to asset forfeiture laws, which allow police to lure would-be cocaine buyers into their jurisdiction to separate them from their cash, vehicle, and any other property of value. Sunrise police generally had a kilo of real cocaine on hand for most deals, often forcefully encouraging the buyer to try it. The police posed as dealers in a long-term reverse sting operation that arguably crossed the line into illegal entrapment.Read more
Seizing tall buildings in a single bound: The Alavi Forfeiture and Use of Federal Forfeiture Statutes as an Embargo Tool
Last month a judge approved the government’s forfeiture of the Piaget Building on 5th Avenue because it was secretly owned by the Iranian government. Certainly the taking of a 36 story building in Manhattan is a major victory in the government’s struggle to impose economic sanctions. What is surprising, however, is that the government is not relying on an international trade theory. Instead, it is using a tool designed to punish criminal behavior, that is… forfeiture.
Obviously, anytime an entire skyscraper is taken it’s a newsworthy event. But this case is more than simply sensational. It presents several issues that are not only significant from a legal perspective but also sobering from a civic viewpoint.Read more
Happy to report that Michigan's House of Representatives has introduced bipartisan sponsored legislation to comprehensively track the circumstances surrounding forfeiture actions; how cases are disposed of; and how forfeited assets are ultimately spent. Ideally, of course, Michigan would simply end the practice of civil forfeiture. This bill, however, could prove an invaluable tool by giving journalists, reformers, voters, and legislators the tools to make the case for reform.
Yesterday's oral arguments in Kaley v. United States seemed to accomplish little for either reform advocates or the government. At stake is whether indicted (but still presumed innocent) defendants should enjoy an opportunity for a hearing wherein they could attempt to show that they were entitled to use their frozen assets to hire counsel because the charges against them were flawed.
The government, unsurprisingly, insisted (1) that an additional hearing would be unfair to the government, inviting fishing expeditions from the defense; (2) that an additional hearing, where defendants could show that the prosecution's case lacked merit, would upend the sanctity of grand jury indictments; and (3) that the whole process would be novel and unwieldy, requiring the court to make up extensive new procedure to cabin the process.
The Kaleys enjoy the more intuitive appeal: it seems unfair that defendants should be prevented from using their own money to hire a lawyer because a prosecutor claims their assets were involved in a disputed crime and because a grand jury returned an indictment without giving the defendant an opportunity to put on a defense. The too common upshot, then, is that defendants, without access to qualified counsel, need to plead guilty because they cannot defeat the charges without qualified counsel. The process effectively subverts any meaningful notion of due process in a legal system that requires a good lawyer to prevail.
What the Justices might do, if anything, about the obvious unfairness, however, remains to be seen. Justice Antonin Scalia fretted about the strange territory the defense's proposed remedy would require the court to create, indicating he'd rather create a sweeping new rule that the government "cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel" than create unwieldy new procedure for special adversarial hearings to determine whether the continued freezing of assets to deny counsel is appropriate. Justice Samuel Alito, a former prosecutor, seemed worried that such hearings would generate fishing expeditions for additional discovery from the defense. Chief Justice John Roberts and Justice Stephen Breyer hammered the government's lawyer, repeatedly disputing the salience of the government's arguments and facts.
At this point, it is, of course, difficult to predict how the justices might rule. However, reform might get at least three votes. A coalition of Chief Justice Roberts and Justice Breyer and Justice Sonia Sotomayor, who authored the landmark Krimsock v. Kelly decision that invalidated New York City's policy of seizing and indefinitely detaining DUI suspects' vehicles without allowing defendants opportunity to challenge the seizures before trial (which could take years to get to) and effectively created Krimstock hearings, seems plausible.
While there are many implications of a potential shutdown of the federal government, one thing that won't stop is the use of federal asset seizure and forfeiture by law enforcement. That's because Congress doesn't fund that activity through appropriations; that money comes out of the Asset Forfeiture Fund, controlled by the Department of Justice. Indeed, these kind of budget battles increase the use of forfeiture by law enforcement agencies looking to sustain budgets when Congress won't pay the bills. In other words, the rights of Americans to private property may soon come under greater and sustained assault. The need for reform has never been greater.Read more
Barry Kriger from Channel 22 WWLP reports:
The Hampden County District Attorney's office has found a way to turn a "negative" into a huge "positive" for the community.
DA Mark Mastroianni handed out three 10-thousand dollar checks to three groups that focus on helping young people.
The money is seized during drug investigations.
The Gray House received one of the grants which will support their "Kids Club" after school program for kids in Springfield's North End."
"We provide academic support for them. Engage them in constructive activities and provide them with a healthy meal at night before they go home to their families," said Dana Calvanese, Executive Director of The Gray House.
"So it is gratifying for us to turn a very negative source of income, being drug sales, and turn it around into a way it can benefit the community," said Mastroianni.
The ability of prosecutors in Massachusetts to delegate forfeiture revenues free from legislative appropriation endangers the democratic structure of Massachusetts governance. Further, this system injects dangerous political incentives into the prosecutors office, incentivizing systemic threats to basic rights of property and liberty.Read more