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Nita Ghei’s Column On BATFE’s New Asset Forfeiture Authority….

On September 7, 2012, in federal, by Scott Alexander Meiner

Nita Ghei has a great Op-Ed at the Washington Times on the new authority given to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF or BATFE) to seize and administratively forfeit property allegedly involved in Controlled Substance Act offenses. The Op-Ed is spot on except a clarification might be useful. Ghei’s Op-Ed could be misread as implying that without the rule change, BATFE lacks power to seize and administratively forfeit property. That is not the case. BATFE already enjoys broad power to seize and administratively forfeit. However, it currently has to to tie the seizure to some specific offense (within its authority)-even if there is no charge or conviction against a person. In practice, expanding BATFE authority to seize and administratively forfeit for controlled substance offenses is granting BATFE authority to use fill-in-the-blank catch-alls for seizures and forfeitures.

Courts often accept that unexplained property possession is drug related-even when there is no direct evidence of drugs. Bulk currency is the obvious example but it could be anything. In theory, that would (and should) be the same with controlled substance act violations. In practice, it is not.

The Column:

The Obama administration is making it easier for bureaucrats to take away guns without offering the accused any realistic due process. In a final rule published last week, the Justice Department granted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) authority to “seize and administratively forfeit property involved in controlled-substance abuses.” That means government can grab firearms and other property from someone who has never been convicted or even charged with any crime.

It’s a dangerous extension of the civil-forfeiture doctrine, a surreal legal fiction in which the seized property — not a person — is put on trial. This allows prosecutors to dispense with pesky constitutional rights, which conveniently don’t apply to inanimate objects. In this looking-glass world, the owner is effectively guilty until proved innocent and has the burden of proving otherwise. Anyone falsely accused will never see his property again unless he succeeds in an expensive uphill legal battle.

Such seizures are common in drug cases, which sometimes can ensnare people who have done nothing wrong. James Lieto found out about civil forfeiture the hard way when the FBI seized $392,000 from his business because the money was being carried by an armored-car firm he had hired that had fallen under a federal investigation. As the Wall Street Journal reported, Mr. Lieto was never accused of any crime, yet he spent thousands in legal fees to get his money back.

Law enforcement agencies love civil forfeiture because it’s extremely lucrative. The Department of Justice’s Assets Forfeiture Fund had $2.8 billion in booty in 2011, according to a January audit. Seizing guns from purported criminals is nothing new; Justice destroyed or kept 11,355 guns last year, returning just 396 to innocent owners. The new ATF rule undoubtedly is designed to ramp up the gun-grabbing because, as the rule justification claims, “The nexus between drug trafficking and firearm violence is well established.”

The main problem is that civil forfeiture creates a perverse profit motive, leaving bureaucrats with strong incentives to abuse a process that doesn’t sufficiently protect those who may be wrongly accused. Criminal forfeiture is more appropriate because it’s tied to a conviction in a court with the option of a jury trial and evidence beyond a reasonable doubt. Innocents like Mr. Lieto have to fight against the might of the U.S. government with a watered-down standard that stacks the legal deck so prosecutors can get a quick win.

The rule extending civil-forfeiture power to the ATF recognizes this dynamic, stating with perhaps unconscious cynicism that an uncontested civil forfeiture “can be perfected for minimal cost” compared to the “hundreds or thousands of dollars” and “years” needed for judicial forfeiture. Nowhere is there any recognition of the burden placed on innocent citizens stripped of their property, or of the erosion of their civil liberties. In fact, the rule argues that, because in the past the ATF could turn over requests for civil forfeiture to the Drug Enforcement Administration, there has been no change in “individual rights.”

Instead of expanding the profit motive in policing, Attorney General Eric H. Holder Jr. should be working to eliminate it.” Nita Ghei, “GHEI: ATF’s latest gun grab Agency reduces due process for seizing firearms,” The Washington Times, 6 Sept. 2012

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