“Well, you have seen many times the photos from various law enforcement agencies of large drug and money seizures from traffic stops. Many times the drugs total hundreds of pounds and the money is bundled in thousands of dollars. Well here is an example of what takes place most of the time, a small amount of drugs, a small amount of money and a tiny gun. The effort is just as big, but the results are a lot less. But regardless, the public should be comforted to know that the officers are out there at 3:00 am in the morning doing their job of protecting the public.”

Original post here.

AFR’s Eapen Thampy appears on today’s Peter Schiff Show to discuss “how the NSA’s partnering with domestic law enforcement agencies imperils average, non-terrorist Americans” in light of recent reporting from Reuters.

Yesterday’s NPR’s On Point with Tom Ashbrook hosted Sarah Stillman, Vanita Gupta (Deputy Legal Director at the ACLU and co-counsel for some of the Tenaha, TX forfeiture victims), and Cameron Holmes (Arizona assistant AG and “[p]rimary drafter of Arizona’s forfeiture and money laundering statutes”) for a discussion of Stillman’s piece and the role of civil forfeiture in modern America.

Washington, DC (August 5, 2013) – Today, Reuters news service reported that “A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.” Reuters further reports that it has undated documents that “show that federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.” And late yesterday, The Houston Chronicle reported that “The National Security Agency is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism[,]” including in cases alleging conduct including sex offenses and corporate criminal activity under the Foreign Corrupt Practices Act. The information sharing programs reported by Reuters and The Houston Chronicle over the last 24 hours are yet further examples of the national security state seeping into the traditional justice system.

National Association of Criminal Defense Lawyers (NACDL) President Jerry J. Cox said: “NACDL has long feared that overbroad national security policies would become the norm for all criminal prosecutions and today we know our concerns were not unfounded. Two months after Edward Snowden’s initial disclosures about various U.S. government surveillance activities, we know very little more about the parameters of the NSA surveillance programs. These latest reports are particularly troubling for accused persons who cannot vindicate fundamental constitutional rights without access to accurate and complete information. This puts liberty at risk of being lost without due process of law, which is an affront to the Constitution.”

Indeed, there are further, significant Constitutional implications to these reports. In the American criminal justice system, prosecutors are required to disclose all information in the government’s possession that is favorable to the accused, pertaining to either the determination of guilt or imposition of sentencing. These reports suggest that prosecuting government agencies are provided data collected via seemingly limitless NSA surveillance programs that the American people have been repeatedly told have stringent safeguards and exist only for the purpose of gathering information about international terrorists. Additionally, the Reuters report indicates that programs of intentional non-disclosure of the actual sources of information in connection with non-terror-related activity may be in place. Yet, those accused of criminal activity have no access to any exculpatory information collected by these NSA programs. (Ivan J. Dominguez, Nation’s Criminal Defense Bar Alarmed by Reports of NSA Surveillance Data Use and Intentional, Systematic Non-Disclosure in Domestic, Non-Terror-Related Criminal Cases, NACDL Press Release, 5 Aug. 2013)

The implications of using the NSA intercepts to leverage enforcement of the Foreign Corrupt Practices Act are enormous given the history of the law:

Yet paying foreign officials to secure contracts abroad was simply a part of doing business in the 1970s. Hundreds of U.S. companies paid bribes out of perceived necessity. Counting on its influence as the most world’s powerful economic force, the United States decided to eliminate the practice and passed the Foreign Corrupt Practices Act (FCPA) of 1977. The FCPA outlawed bribery and imposed financial accounting requirements on all U.S. persons and certain foreign issuers of securities. Thirty-five years later, FCPA enforcement is contentious. Corruption is an extraordinarily fact-specific crime, so the government can’t foresee and enumerate all of the activities that are prohibited. At the same time, businesses require clear lines and definitions to comply with the Act.

The U.S. Department of Justice (DOJ) and U.S. Securities and Exchange Commission (SEC) rarely enforced the law until about a decade ago. Since then, the government has accelerated enforcement, broadened its reading of the Act, tried new prosecutorial strategies, and even experimented with sting operations. Today, the SEC and DOJ investigate between 70 and 80 potential FCPA violations at any given time—this is more than at any other time in the Act’s history.  Since 2009, the DOJ has entered into more than 40 corporate resolutions of FCPA investigations, resulting in nine of the top 10 monetary settlements in FCPA history, including more than $2 billion in fines recovered. In 2012 alone, the government collected $260,571,467 in financial penalties from corporations violating the FCPA. (Institute for National Security and Counterterrorism, The FCPA Landscape, Spring 2013)

The intentional non-disclosure of NSA intercepts used to start investigations into FPCA violations implies that the Department of Justice has managed to leverage illegal surveillance practices into a massively profitable extortion system that denies corporate and individual targets access to fundamental rights. Moreover, US companies doing business abroad are presented with a host of liability risks from conducting what might be otherwise ordinary, routine business practices:

The DOJ’s more aggressive enforcement has included focusing on individuals, not just companies. Indeed, US Attorney General Eric Holder has said that “prosecuting individuals is a cornerstone of [the DOJ’s] enforcement strategy.” This statement, made in spring 2010, came shortly after a person was sentenced to over seven years in prison upon pleading guilty to, among other things, conspiring to violate the FCPA.

With the DOJ’s focus on individual accountability, corporate executives are now at risk for business procedures that, until recently, they might have considered routine rubberstamping, such as securing government permits, processing customs papers, and procuring sales licenses.

“The same holds true of various routine interactions with business associates,” says Shah. “Take, for instance, a US medical-device company’s sales manager who sponsors the attendance of an industry conference by a healthcare provider in China. If the healthcare provider is employed by a state-owned hospital, he or she could be considered a government official, consequently increasing the potential risk of FCPA violation.” (PriceWaterCoopers, Foreign Corrupt Practices Act, Growing Your Business, 2011)

It’s time for Congress to review the Department of Justice’s practices regarding both the secret sharing of NSA intelligence with the DOJ and the use of civil forfeiture to enforce the FPCA. At the very least, the DOJ should not be able to use civil forfeiture as an enforcement tool; the revenue created for the DOJ through FPCA civil forfeiture represents a structural incentive for the federal government to violate the rights of companies and individuals engaged in international trade for profit.

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses. (John Shiffman and Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, 5 Aug. 2013)

AFR Research Director Scott Meiner notes that:

“While the techniques described are universally bad, they carry special concern in forfeiture cases–where intelligence tips of a driver carrying cash (for legitimate or illegitimate reasons) compels officers to create parallel constructions to obfuscate from the courts and the public the real reasons why drivers are pulled over: so the department can score forfeiture proceeds.”, said AFR Research Director Scott Meiner.  “Informed police departments can use SOD tips to pull over cars that they know have cash (whether it is legitimate or illegitimate) and then apply a K9 sniff (with seeming random innocuity) and find the cash that they knew existed. A positive sniff (which is an inevitably positive sniff given what we know of cuing errors) validates the purported connection to drugs and thus justifies the forfeiture to the courts.”

This is particularly problematic in civil asset forfeiture, as federal law allows the seizure and forfeiture of property in a civil, not criminal process, and there is no federal requirement that criminal charges be filed when the government is interested in a civil forfeiture.

More broadly, the use of SOD to spy on Americans by the DEA calls into question not just the use of asset forfeiture in highway stops, but also in other aggressive forfeiture-related tactics such as the use of confidential informants and forfeiture “specialists” who hunt for property to seize. Two recent cases are instructive in this regard:

• The 2008 “reactivation” of DEA informant Anthony Chambers, who was caught lying under oath in court at least 16 times and was fired by the agency in 2000. Chambers is known as the “highest-paid snitch” in DEA history and is responsible for over 445 drug arrests, as well as millions of dollars seized by the DEA and other agencies.
• The attempted forfeiture of Russ Caswell’s motel property in Tewksbury, MA. The DEA attempted to seize the Motel Caswell after Vincent T. Kelly, a DEA forfeiture specialist, claimed he had found reports of drug crimes happening at the Motel Caswell in newspapers going back over a decade. It seems more than a little odd that DEA forfeiture specialists read decades-old newspaper articles looking for property to seize; is it possible that this justification for the Motel Caswell forfeiture is a “parallel construction”?

Indeed, asset forfeiture is now a major revenue stream for federal law enforcement. Sarah Stillman reports in the New Yorker:

Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime. Even then, forfeiture remained an infrequent resort until 1984, when Congress passed the Comprehensive Crime Control Act. It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.

Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.) The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending. In 1989, Attorney General Richard Thornburgh boasted, “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.” (Sarah Stillman, “Taken“, The New Yorker, 12 Aug. 2013)

Ethan Nadelmann, executive director of the Drug Policy Alliance, today called for Congress to act, saying “It’s remarkable how little scrutiny the DEA faces from Congress or other federal overseers. With an annual budget of over $2 billion as well as significant discretionary powers, DEA certainly merits a top-to-bottom review of its operations, expenditures and discretionary actions.” We might add that it’s time for Congress to specifically review the DEA’s discretionary asset forfeiture authority and access to unappropriated forfeiture revenues. Prior to 1984, the US was able to fund its federal and state law enforcement through direct legislative appropriations. It’s time for Congress to reassert its power of the purse and end the ability of federal law enforcement to chase profits without accountability.

The SPD proposes to use $896,865, of the $1,262,699, to replace and repair the Police Department’s fleet of aircraft, procure safety equipment to support front-line law enforcement (i.e., weapons and ammunition), procure equipment and software used to support front-line law enforcement (i.e., in car computers/cameras and electronic citation equipment), and procure equipment for specialized law enforcement units (i.e., Special Weapons and Tactics (SWAT) Team). The balance of $365,835 is proposed to fund anti-drug and gang programs as required by State of California Health and Safety Code Section 11489. (Sacramento Police Department, Fiscal Year (FY) 2013/14 Asset Seizure Expenditure Master Plan, 30 Aug. 2013)

The lack of details in SPD’s spending proposal has lead Sacramento City Councilman Jay Schenirer to press for more information:

“That’s more than we have in the city general fund to spend on those programs, so it’d be good to know what we’re spending it on, which programs, the effectiveness of those programs and how we’re measuring if they’re working or not,” he said.

It’s the kind of question that doesn’t get asked enough around these parts. (Why, the previous week, this very same council said nada regarding the $7.5 million loan it forgave the Crocker Art Museum. And that’s way more than 900 grand.)

Back to the forfeiture account, state law [specifically Health & Safety Code 11489 (i) and (ii)] says 15 percent of these monies have to be spent on drug- and gang-diversion, with a priority given to programs with a successful track record. It also says such efforts “shall wherever possible involve educators, parents, community-based organizations and local businesses, and uniformed law enforcement officers.”

The law’s intent is that police agencies don’t just keep circulating the funds internally, but actually put it into the community to, you know, help and stuff.

No one is saying the police department is trying to do the latter, but, as our old math teacher always commanded, show your work.

Aside from a detailed breakdown of how the money would be spent, Schenirer also wanted to know what had been purchased in the past and have a broader conversation about how the council’s priorities may have shifted since it last codified its public safety goals 23 years ago.

“Some things have not changed, but many have since 1990,” he added. (Raheem Hosseini, Jay Schenirer proves elected officials can actually ask where the money is going, Sacramento News & Review, 31 Aug. 2013)

It’s rare that an elected official exercises meaningful oversight over law enforcement use of asset forfeiture revenues; since these aren’t appropriated funds, elected officials are rarely held accountable for their use and have little incentive to challenge the spending priorities of politically connected and powerful law enforcement agencies.

Calling it “the most significant vulnerability to the State of Texas,” Attorney General and gubernatorial candidate Greg Abbott outlined last week a broad strategy to secure the Texas-Mexico border. In a telephone interview, Abbott said as governor he would work to put “more boots on the ground” at the border, improve communication and cooperation between state and local and federal agencies and increase the use of technology, all of which would be funded largely by seizures of illegal assets through aggressive prosecutions of money laundering operations.

“I believe our crackdown and taking of transnational gang and international drug cartel assets will fund a large part of the expansion of operations we need on the border,” he said. He cited several examples in which investigators in a unit within the Attorney General’s Office that focused on money laundering cases related to cartels seized assets worth millions of dollars from drug cartel members.

The effects of such investigations — almost always done in cooperation with other law enforcement agencies — are two-fold, he said. They provide funding for the law enforcement agencies that investigate them and they show cartels that “coming through Texas is a money-losing proposition,” he said. “If you cut off the lifeblood, they can’t live without it. The cost of doing business is just too high,” he added. Jacob Fischler, Abbott promises more funding for border security, The McAllen Monitor, 27 July 2013.

It is unclear whether AG Abbott hopes to accomplish increased forfeiture funding by weakening state asset forfeiture reforms (instituted after Texas’ many forfeiture-induced scandals), or, in the alternative, positioning local departments to chase more asset forfeiture dollars via the U.S. Department of Justice’s federal equitable sharing program. Both predict ruinous consequences for untold innocents. The latter, though, merits special mention because AG Abbott positions himself as a strong defender of 10th Amendment principles and Texas’ sovereignty. Indeed, it is a central platform plank:

“Texas’ greatest freedom enumerated in our Constitution is the Tenth Amendment.

This country is seeing a federal government that aggressively intrudes into our personal lives, our businesses, and our bank accounts—completely disregarding the powers delegated to the states by the United States Constitution.

To combat an overreaching federal government, Greg Abbott has filed 27 lawsuits against the Obama Administration to protect Texas’ sovereignty.

From the EPA to ObamaCare, Greg Abbott has challenged every attempt by the federal government to erode our states’ rights. He has led Texas to resounding legal victories that shield our state laws and ensure that our Tenth Amendment rights are not infringed upon.

Greg Abbott will relentlessly continue to make sure that Texas’ constitutional rights are never held hostage by the federal government.” [www.gregabbott.com/issues]

Yet, AG Abbott champions a policy that incentivizes local law enforcement departments to chase their budgets through what they seize (begetting those inevitable aggressive intrusions into our personal lives, businesses, and bank accounts) and, it seems, through a federal program whose very existence is bound up in circumventing state laws that protect local citizens from predatory forfeiture schemes. Indeed, for several states, local law enforcement near universally pursue federal adoption of their forfeitures so that forfeitures will pass through the DOJ’s equitable sharing program because the proceeds of forfeitures would otherwise go to the state’s education fund–as the local voters wanted.

Moreover, even in states that permit local law enforcement to directly profit in forfeitures, such as Texas, use of the federal equitable sharing program frustrates local autonomy by giving law enforcement the option of evading process and budget-discretion protections the local citizenry saw fit to enact.

Council members noted that, among other things, they were troubled by Ms. Wright’s decisions to pursue forfeiture actions against properties belonging to innocent, grieving spouses:

“[Counselor Robert] Jubinville, of Milton, said he found Wright’s work on cases involving property forfeiture in drug cases “troubling.” He said in two separate cases, Wright as the federal prosecutor chose to pursue property forfeitures from innocent wives of drug suspects, despite knowing the women had no knowledge of the criminal activity.

In one case, the widow had lived in the house for 30 years, and there was no evidence that any drug money was used to purchase or pay for the house, according to Jubinville. Her husband, who was the subject of the federal charges, had committed suicide.

Jubinville said Wright acknowledged she had the discretion to drop the case after the husband’s death, but decided not to.

In another case, an innocent women’s son committed suicide while the government pursued taking the family home, he said.

“What’s troubling to me is the fact that in the two cases, and I asked her this, I said ‘What was the point of forfeiting the house after the husband committed suicide? You knew she had nothing to do with the crime. Doesn’t the government have enough houses? Don’t they have enough money?” Jubinville said.” Excerpted from Colleen Quinn and Michael Norton, Governor’s Council rejects another Patrick nominee for judge, State House News Service; Patriot Ledger News, 01 Aug. 2013.

Ms. Wright, a one-time president of Harvard Law School’s prestigious Harvard Defenders and former Chief of the DOJ’s Asset Forfeiture Unit in the Criminal Division, currently works in the office of controversial U.S. Attorney Carmen Ortiz.

Today, we’re waiting to hear the results of a hearing of the Indiana Supreme Court Disciplinary Committee in the case of Paul Odgen (you may remember Odgen’s 2011 lawsuit against Indiana prosecutors who were illegally keeping proceeds from asset forfeiture). Odgen now faces two accusations that the Disciplinary committee must decide on, one stemming from his advocacy on the forfeiture issue:

The other charge against me also touches on speech.  At the conclusion of civil forfeiture proceedings, when the defendants are out of the case and the government is dividing up the proceeds, the judge is supposed to make a determination of law enforcement costs on a case-by-case basis with the balance above costs going to the Common School Fund.   Yet for years no Marion County judge has ordered money to be paid to the Common School Fund.

Judges appear to simply be signing off on whatever order they are given by the prosecutor at the end of the case.  I believed that the judges simply do not know the obscure statute and fairly recent Supreme Court case reiterating the duty of a judge to determine law enforcement costs in a civil forfeiture case on a case-by-case basis with the remainder going to the Common School Fund. (The DC attorney opined in my conversation with him that the Marion County judges know the law, but that they are “just lazy,”)  I reviewed the disciplinary rules to make sure I wasn’t violating any of them, and sent a letter to the judges outlining the law regarding the division of civil forfeiture proceeds.  (I also wrote a blog article on the subject of judges not following the rules on division of civil forfeiture proceeds.)  I had no forfeiture cases before any of the judges and to make certain I wasn’t accused of some sort of improper ex parte communication, I copied the letter to the prosecutor, the Attorney General and the Public Safety Director, the very people involved, at trial or on appeal, for the very issue I was addressing in the correspondence.

For that I was charged with improperly trying to influence a judge by ex parte communication.  The Commission’s position is that the only way judges can learn about the law is through court filings.  (Though the Commission’s attorney admits there is a service which tries to keep judges updated about legal developments.)  That simply isn’t the case.  If that were true, an attorney sitting down to talk to a judge over lunch and discussing the law would be violating the rules.  An attorney making a legal point at a CLE seminar where a judge is present could be violating the rules.  An attorney sending a judge an interesting law review article would be violating the rules.  The charge simply has no merit whatsoever. (Paul Ogden, Attorney Free Speech and My Hope for Reform of the Disciplinary Process, Ogden on Politics, 29 Jul 2013)

There are not many attorneys who vigorously challenge abuses of power by prosecutors, especially when asset forfeiture is concerned. The efforts by Indiana prosecutors to squelch the dissent of attorneys like Paul Ogden and Michael Alexander are likely to have a chilling effect on the future speech of other forfeiture reform advocates with a bar membership and should be roundly condemned by all as a violation of the rights to free speech.

“A civil forfeiture action claims Ella’s Discount Auto Sales doesn’t generate enough business to account for more than $1.7 million he deposited in local banks over 11 months, and that he structured deposits to keep them under $10,000 to avoid having the banks file currency transaction reports with the Department of the Treasury.

But Ella, who first started getting visits from federal agents around the time of the 9/11 attacks, says he’s done nothing wrong and that there is a more sinister motive behind the forfeiture action filed by the U.S. Attorney’s Office.

He contends federal agents from the Department of Homeland Security don’t understand his successful business on Fourth NW and that they singled him out because he is a naturalized American citizen from Iran.

“It’s my name. My ethnicity,” the successful car dealer said in an interview. “I don’t like saying that, but what other reason can they have for trying to destroy me, my business.”

“I like being American. I’m proud to be an American, but I feel like I’m under friendly fire.” Mike Gallagher, Car dealer Reza Ella says Homeland Security targeted him over his heritage, Albuquerque Journal, 28 July 2013.

Notably, the government attempted the same thing in 2007. That attempt resulted in Mr. Ella paying the government $12,000 to go away after they brought a suit against $489,732.02 of his dealership’s assets:

“In 2007, federal prosecutors tried to seize $489,000 through a civil action that ended with Ella getting almost all his money back. The feds got to keep a grand total of $12,000, according to the settlement agreement. In the 2007 case, the government accused Ella of structuring cash withdrawals from banks to avoid federal reporting requirements.

Ella said he agreed to the negotiated settlement in the 2007 forfeiture case to get most of his money back and because he believed that would end his problems with federal law enforcement.”

Ella’s attorneys said they don’t intend to negotiate a deal this time and have asked for a jury trial. NM used car dealer fights forfeiture claim by feds, Associated Press, 28 July 2013.

A federal appeals court has revived Indiana criminal defense lawyer Michael Alexander’s lawsuit accusing the U.S. government of conspiring with a state prosecutor and two criminal suspects to falsely accuse him of attempting to bribe a witness.

The U.S. Court of Appeals for the Seventh Circuit on Wednesday reversed Southern District of Indiana Judge Sarah Evans Barker’s April 2012 dismissal of Alexander’s claims. Barker held that Alexander failed to raise a valid malicious prosecution claim and that his intentional infliction of emotional distress claim was time-barred.

Alexander’s June 2011 Federal Tort Claims Act suit claimed that former Indiana state prosecutor Mark McKinney conspired with Federal Bureau of Investigation agents Neal Freeman and James Howell and father-son criminal team Stanley Chrisp and Adrian Kirt, who faced drugs and arson charges, to frame him. He claimed that McKinney nursed a grudge against him because he was a vocal critic of the prosecutor’s handling of drug forfeitures.

He alleged that his February 2008 arrest and was based on false evidence and that the alleged conspirators withheld a tape recording of a July 2006 meeting with Chrisp and Kirtz during which he denied knowledge of his investigator’s alleged bribery of clients.

A Delaware County, Ind., jury acquitted Alexander in March 2009. He filed a notice of his tort claim with the FBI in October 2010 and followed with the lawsuit when the FBI opted not to act on the claim.

Judge Diane Wood wrote Wednesday’s opinion, joined by judges Richard Posner and John Daniel Tinder.

Concerning the malicious prosecution claim, Wood wrote that the allegations are “more than sufficient to assert a causal link between the agents’ actions and the subsequent prosecution.” She added that the complaint adequately pleads malice despite the fact that Alexander hasn’t yet given a reason for the agents’ animosity toward him.

“Unfortunately, in a world where public corruption is hardly unknown, we cannot agree that Alexander’s complaint is too implausible to hold together absent allegations of this sort. We might wish to live in a world in which such an egregious abuse of one’s official position would be unthinkable, but experience suggests that we do not,” Wood wrote.

(Sheri Qualters, Court Revives Defender’s Malicious Prosecution Suit, National Law Journal, 26 June 2013)

In 2011 the Indiana Supreme Court found that:

We find that Respondent, Mark R. McKinney, while serving as a deputy prosecuting attorney, conducted asset forfeiture proceedings in a manner that created a conflict of interest between his duties as a public official and the private gain he realized in the forfeiture proceedings. On numerous occasions when the ethics of the asset forfeiture procedures were called into question, Respondent turned a blind eye and acted to protect his private interest in his continued pursuit of forfeiture property. For this serious attorney misconduct, we find that Respondent should be suspended from the practice of law in this state for 120 days with automatic reinstatement.

…

Respondent prosecuted a variety of criminal cases, including drug offenses. Respondent, while a DPA, worked with the Muncie-Delaware County Drug Task Force (“DTF”) and was personally involved in drug investigations and many of the resulting criminal cases. During arrests and/or the execution of search warrants, the police seized money and other property from drug suspects. Criminal charges were determined by the DPA assigned to the case, and Respondent prosecuted many of the defendants charged with drug crimes.

In addition to his DPA salary, Respondent received attorney fees as a private practitioner for bringing suits for the forfeiture of criminal defendants’ property, as did other DPAs, including Louis Denney. In 1995 and 2004, Respondent and Prosecutor Reed entered into written fee agreements (“Fee Agreements”) under which Respondent would receive an amount equal to 25% of any judgment entered in a civil forfeiture action Respondent brought under a statute currently codified at Indiana Code § 34-24-1-1, et seq.

(In the Matter of Mark McKinney, No. 18S00-0905-DI-220, Ind. Supreme Court, 2011)

While McKinney’s law license was suspended and some restitution was ordered, no criminal charges have been filed, and prosecutors have little to fear from allegations of future misconduct:

In 2009, McKinney was ordered by a circuit court to repay $168,092 in attorney fees and funds obtained by civil forfeiture in drug-related cases. The court said the funds had been seized without a court order in violation of state law. Another prosecutor, Eric Hoffman, was ordered to return $17,164.

“At the end of the day, civil forfeiture counsel McKinney and Hoffman had control of forfeited assets and directed where they went,” said Circuit Court Judge Richard Dailey.
“These two attorneys were willing to use the legitimacy and authority of the judicial system in pursuit of civil drug forfeitures, but they were unwilling to submit their actions in these agreements to judicial scrutiny.”

Judge Dailey said the prosecutors’ “handling of civil drug forfeitures amounts to fraud on the court.”

However, McKinney’s suspension was not a warning to all prosecutors engaging in similar conduct, according to University School of Law-Indianapolis professor Joel Schumm. That’s because while McKinney’s case was extreme, his punishment was fairly light. “Probably a lot of prosecutors aren’t technically following the law,” Prof. Schumm stated.

(Matt Clarke, Indiana Prosecutor Disciplined for Conflict of Interest, Prison Legal News, April 2012)

 

Nolan Clay reports at the Oklahoman:

HINTON — After seizing more than $1 million in cash in drug stops this year, a district attorney has suspended further roadside busts by his task force because of growing criticism over a private company’s participation.

His prosecutors have dropped all criminal cases arising from the drug stops, The Oklahoman was told. Some seized money is being returned. The attorney general’s office is investigating one complaint some seized funds went missing.

“I’m shocked,” a Caddo County special judge said July 2.

Reform groups, including the Institute for Justice, criticized Chairman Willard’s proposed forfeiture reforms as inadequate.

The President of the Georgia Sheriffs’ Association wrote an editorial claiming, among other things, that if passed, the bill would “literally demoralize the law enforcement community to a point where we will see little public benefit in enforcing the law when it comes to drug dealers and other criminal entrepreneurs.”

“Jackson County Sheriff Mike Byrd has denied the Sun Herald’s request for flight records and fuel costs for the Sheriff’s Department helicopters, though the law says the records are public. Byrd contends they are not, because drug-forfeiture money, not taxpayer money, is involved.

“The sheriff of Jackson County is a public body under the Mississippi Public Records Act,” said Gulfport attorney Henry Laird, who specializes in First Amendment and public-access issues.

The same is true for forfeiture records. “As such, the sheriff has a duty to give the public and the press copies of all public records requested. The records the Sun Herald has requested are public records. For the sheriff to say flight records and fuel records are exempt is wrong. The same is true for forfeiture records. They are public record.”

Cherie Ward, the sheriff’s public information official, responded in writing to the Sun Herald’s request to look at the records.

“Sheriff Byrd received your request for information about flight records and fuel costs of the helicopter,” the statement said. “Sheriff Byrd said the fuel is paid for with drug forfeiture money. Sheriff Byrd also said flight records and logs are not public record. Sheriff Byrd added that only the Federal Aviation Administration can view flight records and logs.”State law requires a public body to submit in writing the specific exemption they are relying on to deny the records request, but Byrd did not respond to repeated requests for him to cite the exemption he was relying upon when denying the request for records.

Charlie Mitchell, an attorney and assistant dean of the Meek School of Journalism and News Media at the University of Mississippi, said it “would be interesting to know what authority the sheriff cites for nondisclosure.” Read more at Margaret Baker, Jackson County sheriff denies request for helicopter records, Sun Herald, 13 July 2013.

EVENT: POLICING FOR PROFIT:
Legislative Briefing on the Need to Reform Federal Civil Forfeiture

DATE & TIME: Tues., July 16, 3:30 – 4:30pm

PLACE: Rayburn House Office Building
Room 2226
Washington, D.C.

PARTICIPANTS: Scott Bullock, Senior Attorney, Institute for Justice
David Smith, Smith & Zimmerman, PLLC, and national expert on civil forfeiture
Russ Caswell, Institute for Justice client and victim of civil forfeiture

SUMMARY:

In 2012 alone, assets deposited into the Department of Justice’s Asset Forfeiture Fund, the federal government’s largest forfeiture fund, exceeded $4 billion. That is a 960% increase just since 2001.

On Tuesday, July 16, at 3:30pm, the Institute for Justice—a national public interest law firm that fights civil forfeiture abuse nationwide—will hold a legislative briefing on the need for federal civil forfeiture reform to curb widespread abuses of power that have resulted in billions being seized by law enforcement and deposited directly into their own coffers.

Imagine you own a million-dollar piece of property free and clear, but then law enforcement agents announce that they are going to take it from you, not compensate you one dime, and then use the money they get from selling your business and land to pad their budgets—all of this even though you have never so much as been accused of a crime, let alone convicted of one.

That was the nightmare Russ Caswell and his family faced in Tewksbury, Mass., where the federal government
tried to take the family-operated motel they have owned for two generations through civil forfeiture. This is the upside-down world of civil forfeiture, and Russ’s case demonstrates the need to reform federal law to discourage this abuse of power.

Under civil forfeiture, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.

Institute for Justice senior attorney Scott Bullock, who represented Russ Caswell, will be joined by Russ and David Smith, a national expert on civil forfeiture.

Please join us to learn about how federal civil forfeiture law encourages “policing for profit” at the expense of the fair administration of justice, and how federal law creates incentives for states to circumvent strong state laws in favor of more lucrative federal law, in violation of federalism principles.

All staff and media are welcome. Refreshments will be served.
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Institute for Justice | www.IJ.org |

“Phillips is accused of ordering a U.S. Army surplus bulldozer last summer and then using town drug funds to have it delivered to a piece of land that he was clearing for his personal use. The misuse of government equipment was first exposed as part of NewsChannel 5′s two-year “Policing for Profit” investigation.

District Attorney General Randy York asked the Tennessee Bureau of Investigation to open a case, resulting in the former police chief’s indictment. Phillips resigned in March when the current Monterey mayor initiated proceedings that could have resulted in his termination.

His resignation letter, delivered to the town offices, made no mention of the scandal that ended his tenure as police chief. “It has been an honor and a privilege to serve the town of Monterey and its wonderful citizens for the past three years, as this has been my hometown my whole life and will continue to be,” Phillips wrote. He was appointed to lead the eight-person police department three years ago after another scandal involving the prior chief.” Phil Williams, Former Monterey Police Chief Surrenders To Authorities, News Channel 5, 09 July 2013.

Phillips’ predecessor pleaded guilty to theft after guns and some $30,000.00 went missing.

Reason’s John K. Ross previewed the proposal this past January:

The bill, which eight of 12 council members either introduced or are sponsoring, would shift the burden of proof to the government and would require the city to provide a hearing within two days of a challenge—or automatically restore the property to its owner. Currently, the Metropolitan Police Department (MPD) keeps 100 percent of forfeiture revenues, an enormous incentive to police for profit. The bill would redirect all forfeiture proceeds to the city’s general fund—even for cases the MPD turns over to the federal government.

Importantly, the bill undermines a federal program called equitable sharing, which allows local police to sidestep state law containing strong protections for property owners and still retain 80 percent of forfeiture proceeds by turning their cases over to the Department of Justice. The bill also eliminates a fee the MPD charges to a property owner challenging a forfeiture, one that can sometimes exceed the value of the property. The bill requires the MPD to improve recordkeeping, notification procedures, and, in most instances, to return forfeited vehicles while an owner’s case is being adjudicated. John K. Ross, D.C. Council Proposes Pretty Decent Asset Forfeiture Reform, Reason, 15 Jan. 2013.

There are many examples throughout history of governments that attempt to destroy a society’s culture, art, and symbols to consolidate power or crush resistance to the status quo. Modern examples of war crimes against culture have occurred in Rwanda, Afghanistan, Croatia, and elsewhere—the Nazis in Germany famously hoarded countless precious works of culturally-significant art. I would argue that the U.S. government’s practice of targeting the festival community is a serious crime being perpetrated by the U.S. government and its states and municipalities against their own people. Through a combination of prohibitionist legislation, bad police practices (unregulated use of CI’s, refusal to focus on violent crime, low homicide clearance rates), and the temptation of asset forfeiture profits, law enforcement agencies are doing what makes the most financial sense for them at this time, which is going after anyone associated with drugs in order to seize their assets while using fewer resources to protect citizens from violent crime.

Festival attendees are often low-hanging fruit for highway patrolmen or small town sheriffs to target because the people who go to festivals are often young, ignorant of the law and not necessarily aware of their rights. Students for Sensible Drug Policy and the AMPLIFY Project work to hand out “Know Your Rights” materials at numerous events, including shows and festivals, to educate people on what to do when stopped by police. The best advice for anyone suspected of a crime or arrested is to stay quiet and not say a word to police even if you are completely innocent. Some insignificant, offhand comment could be used against you by prosecutors if it happens to conflict with something you say later. The police are not authorized to make deals without involving the District Attorney, despite their attempts to make scared young people believe that they do, as Tallahassee PD apparently did with Rachel Hoffman. Unfortunately, just knowing your rights is often not enough to avoid arrest or asset seizure. You must be sure to exercise your rights, which police may tell you that you do not have, and, if you have something that the police want (like cash), then they’ll take it and send you on your way without making an arrest because you don’t have any right against civil asset forfeiture. The police are not technically violating your rights by taking your property through civil asset forfeiture, which is why forfeiture policy reform is so important to festival culture since it is an out-of-control practice that law enforcement uses to wage war on the festival community.

Many festival attendees and vendors do not keep their money in banks or use credit cards and, therefore, carry large amounts of cash. Cash (meaning a few hundred dollars) can be seized without an arrest being made or any crime being committed if a preponderance of the evidence suggests that the cash may have come from criminal activity involving drugs or may be used to purchase drugs in the future. Festival attendees are often far from home, lacking the resources to return to the county in which their assets were seized to go to court with a forfeiture attorney who will likely not get them all of their assets returned. While there are attorneys who may work on forfeiture cases pro bono, many victims of asset seizure have legal fees they must pay out of their stolen assets. Luckily, organizations like Americans for Forfeiture Reform exist to provide help to the helpless. And when police look for forfeiture victims, you can be sure that they go after the people who will be left helpless after being robbed. Kaley vs. United States will be heard by the U.S. Supreme Court in the fall and will essentially decide whether or not asset forfeiture laws and practices prevent defendants from hiring their counsel of choice (a right guaranteed by the 6^th Amendment) due to the fact that federal defendants often have all of their assets frozen, leaving them unable to hire attorneys they are confident will best defend them. This is truly a frighteningly powerful weapon that the federal government has unleashed on citizens, encouraging the violation of rights by law enforcement agents. When you are lost and pennyless following a highway robbery by law enforcement agents, AFR has associated volunteers and attorneys who want to help, but asset forfeiture is simply too big of a problem for just one organization to tackle. By adding the outraged voices of the festival community to the discussion, I hope that we empower our society, our community, and each other to make meaningful change in the realm of forfeiture reform and other areas of drug policy reform.

The “War on Drugs” name has been retired by the federal government, but prohibitionist policies have not changed and police and prosecutors continue to wage war, specifically against young people of color and anyone involved with festivals. Since the policies haven’t changed, the war is still on and American law enforcement agencies are committing a grievous and unforgivable crime by targeting art for destruction.

Festival attendees are part of a larger culture and work of art simply by attending and targeting any individual member of the festival community for prosecution of a non-violent crime in a systematic way (road-blocks near festivals) should be considered an incredible injustice if that person was reasonably suspected to have been targeted for their participation in a festival, particularly if they produce physical art or do performance art, both essential aspects of festival culture. The U.S. government is not going to charge federal law enforcement agencies or state/local police departments with war crimes against American citizens, but the festival community must recognize that law enforcement is actively engaged in a war against music and art festivals, to the point that they are willing to break international law to wage this war. The festival community is involved in a war with the U.S. government and numerous law enforcement agencies and, while the government wages a dirty war against our culture, we silently lament the loss of friends, property, or festival grounds without making our voices heard in the media or even within the drug policy reform community.

Festival attendees increasingly are becoming part of the culture, art and experience as there is more and more dialogue between audiences and festival bands. The whole festival community works to break down the idea of a hugely popular band playing to a crowd who idolizes them. At festivals, artists mingle with attendees and the audience plays an absolutely vital and active role in creating a successful show and experience. The best shows are not shows in the traditional sense, but shared experiences with large groups of like-minded people where the invisible wall between “performers” and “observers” completely breaks down. The idea of “us and them” is dying as the festival community grows stronger and matures, meaning that police persecution of one member of our community ultimately hurts the entire community and culture.

Papadosio has captured and understood the role that fans play in their shows better than any other festival band of this generation, having recently released an album entitled T.E.T.I.O.S. (To End The Illusion Of Separation). When the police target one member of our festival community because of their beard or dreadlocks or musical instruments or camping gear, then everyone who has found something special in the festival community must speak out against this persecution or risk the destruction of our culture and the art that molds our individual and collective identities. Dopapod relayed a particularly disturbing story before their first Summer Camp set: police stopped them on the way to the festival and searched their van because their instruments “smelled like narcotics” (police found nothing because there were not any drugs in the van). It’s time for the festival community to grow up rather than drop out because we are a massive group of mostly young people who have the ability to change the policies that are destroying the lives of our brothers and sisters and preventing effective harm reduction services from being performed, such as reagent testing substances to determine their contents. Testing reagents are considered drug paraphernalia by most states.

So what does asset forfeiture mean for the festival community? The government is waging a war against music festivals by using the prohibitionist policies of the drug war, often using laws in ways they were not intended to be used. A widely-known example is the seizure of Camp Zoe and Jimmy Tebeau’s plea agreement after being charged with maintaining a drug-involved premises at Camp Zoe, despite not having been caught with any drugs himself or being connected to any specific drug deals, for which he received 30 months in prison on top of a large fine, community service, and agreeing to forfeit the Camp Zoe property. Ironically, the “crack house” statutes used against Tebeau were a result of him telling security to ban dealers of hard drugs, including crack, from the festival grounds. This was arguably an implicit acknowledgement that psychedelics and cannabis were being used at Camp Zoe and led to his arrest and the forfeiture of his property through a plea bargain, where he received 30 months in federal prison and was forced to forfeit Camp Zoe, a culturally significant piece of property valued at ~$600,000. Tebeau’s forfeiture of Camp Zoe was certainly a factor in reducing the length of his sentence and, from my understanding, was used as leverage in forcing Tebeau into accepting a plea bargain.

Asset forfeiture is often used similarly to draconian mandatory minimum sentences to frighten people charged with drug crimes from going to trial. Perhaps the police were aware that they were standing on shaky ground when they seized a piece of land that has undeniable cultural significance to the festival community because they were never particularly willing to acknowledge that music and art were not only present at Camp Zoe, but were likely the main reason people attended festivals there, along with the desire to feel a sense of community within the festival culture. Acknowledging that legitimate art was present at Camp Zoe would have hurt the government’s case that Tebeau was knowingly running a drug-involved premise (again, the law meant to prosecute owners of crack houses).

Why has the festival community not mobilized around this unthinkable seizure of property? The seizure of Camp Zoe, police checkpoints near festivals (sometimes featuring paramilitary asset forfeiture teams), undercover festival sting operations, and other attacks on festival culture are an open declaration of war by the U.S. government on music and arts festivals and, far too often, the response from festival attendees and people who consider themselves part of the festival community has been to just keep on partying. I’ve even heard people say things like “at least the police on the way to or at one festival are not as bad as they were at another festival,” as if being treated like criminals is an expectation. Even people who have been stopped on the way to festivals seem to view it as a risk involved with the scene when it does not have to be that way.

Portuguese festivals are much safer than their American counterparts because they make sure that reagent testing and even quick GC/MS testing is available to all attendees. Why is that possible? Because Portugal has decriminalized all drugs and created a more civilized and less violent society as a result. As Ethan Nadelmann suggested in a recent speech at Club Health San Francisco in May 2013, perhaps advocating for stiffer penalties for people misrepresenting the drugs they are selling is a way to get politicians interested in harm reduction, particularly reagent testing (the session was titled “Why is this moment different from all other moments?”). Many festival attendees in this country simply take the abuse from law enforcement, lose their assets, and find a way to make it to the next festival. Dropping out of society to go from festival to festival is not necessarily a bad thing if you are working to improve the culture from within, which certainly is necessary, but seeing festivals as an end in themselves is a dire mistake. Dancesafe is a great example of an organization of people who have varying levels of involvement in festival culture, all attempting to improve festival culture from within by providing harm reduction services and education without necessarily engaging in much direct policy change. Dancesafe’s work with the AMPLIFY Project has allowed both organizations to become more proficient at harm reduction and policy reform advocacy. Looking forward all year to your favorite festival without working to improve society or festival culture between gatherings is a pretty sorry way to live your life. If you go to festivals without working to improve them internally or advocate for social change between and/or at events, then you are willfully ignoring the messages underlying festival culture, missing opportunities to enact real social change, and short-changing both our community and yourself and underestimating or ignoring the impact you can have.

Hunter S. Thompson commented on one of the fundamental mistakes of the hippie movement in the 1960s: “There had to be a whole new scene, they said, and the only way to do it was to make the big move & either figuratively or literally & from Berkeley to the Haight-Ashbury, from pragmatism to mysticism, from politics to dope… The thrust is no longer for “change” or “progress” or “revolution,” but merely to escape, to live on the far perimeter of a world that might have been.” The idea of dropping out of mainstream society and simply living within the festival community is an extremely tempting route to take, but it is a fundamental pitfall that festival attendees must avoid because doing so turns beautiful festival experiences into simple escapism. There’s quite a bit of talk about justice and change and peace at the festivals I have been to and the vast majority of the festival community is against the prohibitionist practices of our government. Even for someone who has worked on social justice for years while attending festivals to gain and focus their energy, there is a temptation to just say, “fuck it, society has nothing for me” and make festivals the entirety of one’s existence. Festivals, when done correctly, should not be an end to themselves and I think that they are generally not meant to be. Festivals should be a source of inspiration as members of our community see that creating a peaceful, loving community is possible.

The festival community must not seek to cut itself off from mainstream society, but rather needs to bring the values and ideals of festival culture into the mainstream. Drug prohibition is the largest obstacle to making festivals safer through harm reduction and bringing the ideals of festival culture more into the mainstream. At Club Health San Francisco, we were able to identify drug prohibition as the single greatest barrier to making nightlife and festivals safer because prohibitionist policies generally criminalize most harm reduction techniques. Drug policy reform, including forfeiture reform and harm reduction, is an issue that all members of the festival community should be able to get behind. Ending prohibition would stop police from harassing members of the festival community and robbing them of their assets and it would make festivals safer as harm reduction practices such as reagent testing or even ultra-fast GC/MS testing become a standard part of gatherings so people know what drugs they are taking (if they choose to use drugs). The substances sold and ingested would be pure and people would not be able to profit from selling chemicals as something that they are not, which would keep people safe and remove these predators from our gatherings. I’m not saying that everyone at festivals uses drugs because that simply is not true and is a frequent misconception. However, there is a certain amount of drug use associated with festival culture and everyone needs to be able to look out for each other. The big issue that the festival community must get behind is forfeiture reform or we risk continued government seizures of culturally significant property and the financial ruin of many festival attendees.

The truly important work must be done outside of the festival grounds in the offices of congressmen and city officials. The San Francisco Entertainment Commission is a wonderful example of a non-law enforcement organization that has been empowered by the city to regulate and improve nightlife, recognizing its cultural significance to the city. More cities should follow the lead of San Francisco by allowing people in the industry and familiar with the industry to enforce regulations and work with venues/promoters having difficulty keeping their events legal rather than simply referring the issues to law enforcement, who are not experts on nightlife and have limited options for dealing with violators. Law enforcement agencies must be held accountable for biased policing practices when it comes to forfeiture law and the simplest way to do that is to force these agencies to report the circumstances surrounding civil asset forfeiture cases, including the person’s race, amount seized and the location and circumstances of the stop. Police departments currently do not keep or release statistics on civil asset forfeiture and the first step towards passing forfeiture reform laws is proving police bias in the way they use asset forfeiture, which a reporting law would almost certainly do. The War on Drugs is a War on the Festival Community and we must unite to make our voices heard–we will not continue to accept this intolerance and open war against our works of art and our culture. If you do not speak out against this destruction of culture by working to end prohibition or removing its teeth through forfeiture reform and an overhaul of our Confidential Informant system, then you are allowing this to continue happening, and are complicit in a war on the festival community, on other young people, and on art. Can you live with that?

I suspect that many people unfortunately can, always ready to rage the next show or festival, not giving a shit about any aspect of social justice or drug policy reform. If a large, conscientious, and vocal portion of our community does not stand up against the government and law enforcement agencies by advocating for policy change, then we risk destruction of our entire festival culture in the U.S. It’s time to fight for your ability to produce art, expand your consciousness, and be free from government oppression in the name of the drug war. Whether or not you consume drugs, if you consider yourself part of the festival community, then you must fight to end prohibitionist policies. Those in the festival community who do not choose to fight against drug prohibition and forfeiture abuse are part of the problem because they accept the status quo, free-riders on the hard work of policy reform activists. I can no longer accept the status quo, which is a nasty war waged by the U.S. government against the festival community. Join me in demanding an end to the government’s oppressive War on Festival Culture in the name of the War on Drugs. Check out the AMPLIFY Project to learn about how you can get involved with drug policy reform advocacy and harm reduction efforts at shows and festivals in your community.

I would like to include a brief thanks to Stefanie Jones from the Drug Policy Alliance and Missi Wooldridge from Dancesafe and everyone who attended for putting together Club Health San Francisco May 28-30, 2013, the first time that this revolutionary nightlife safety conference has been held in North America. The Drug Policy Alliance’s dedication to the issue of festival and nightlife safety and inclusion of harm reduction providers in the drug policy reform movement is a HUGE step in the right direction towards reforming drug laws that directly affect the festival community, particularly those that stand in the way of sensible harm reduction practices. Please join us in advocating for safer nightlife and festivals through harm reduction and policy advocacy to end the disastrous drug war and prevent the continuous destruction of elements of festival culture.

BLUE BELL, Pa., June 26, 2013 /PRNewswire/ – Unisys Corporation (NYSE: UIS) was awarded a blanket purchase agreement (BPA) to support Department of Justice (DOJ) Forfeiture Systems managed by the Asset Forfeiture Management Staff of the Justice Management Division.

The DOJ Asset Forfeiture Program (AFP) is a nationwide law enforcement program that has proven to be highly effective in the fight against crime. Twelve agencies, including several outside the DOJ, participate in the AFP.

Most of the work will focus on the Consolidated Asset Tracking System (CATS), the centerpiece of the program and the system that holds all of the data related to assets from the time they are seized by the government to when they are forfeited and auctioned off, repurposed or returned. Unisys will maintain, enhance, modernize and operate the CATS software and other related systems as well as provide associated services for help desk, security and systems integration.

The BPA has a six-month base period and four one-year options, exercisable at the discretion of the government. DOJ has awarded two task orders for the base period, worth an estimated total of $10.5 million. One of the task orders will cover analysis, development and testing of applications, while the other is for operations, engineering, security and support services. The DOJ can issue task orders for additional work under the BPA up to the ceiling value.

This contract follows a prior five year contract with Unisys that was awarded in 2007. A 2012 Government Accountability Office report indicated that “According to Justice and Treasury data, the cost of developing, maintaining, and overseeing their four asset tracking systems in fiscal year 2011 totaled $16.2 million for CATS and $10.4 million combined for the three Treasury asset tracking systems.” The same report indicates that “about $6.9 billion” in seized assets are being managed by the DOJ including the 2011 addition of “452 pieces of real property at a value of about $97 million, and over 3,000 pieces of personal property at a value of about $74 million.”

In many jurisdictions, asset forfeiture is a valuable tool for seizing the defendant’s vehicle or even stash home and, as a secondary benefit, generating revenue for local law enforcement or other statutorily designated beneficiaries.

The notion of asset forfeiture providing a “benefit” for law enforcement through increased revenues is antithetical to democratic or constitutional governance. As Brent Hadaway wrote in his October 2000 University of Miami Law Review article “Executive Privateers“:

In recognition of the political reality that drug prohibition is unlikely to end in the near future, it is appropriate to consider some issues for future efforts at reform. Although its purported intent may have been to deprive drug dealers of the fruits and instrumentalities of their activities, as it is practiced by the government, forfeiture is, for all intents and purposes, a means of raising revenue, and it will most likely continue to be so in a post-Reform Act world. Eric Blumenson and Eva Nilsen have argued that this particular feature of the current law of forfeiture, beyond its obvious corruptive potential, violates the constitutional separation of powers as contained in the Appropriations Clause of Article I. This argument is sound, and is worth exploring in a litigation context.

Because 21 U.S.C. § 881(e)(2)(B) mandates the depositing of forfeited proceeds directly into the Justice Department’s Asset Forfeiture Fund, the core congressional power found in the Appropriations Clause is bypassed in favor of an agency of the executive branch raising its own revenue and setting its own budget. But since Congress granted this power to the Justice Department, the question becomes whether this was an impermissible delegation of a core congressional power. The nondelegation doctrine provides that “so long as Congress provides an administrative agency with standards guiding its actions such that a court could ascertain whether the will of Congress has been obeyed, no delegation of legislative authority trenching on the principle of separation of powers has occurred.” However, “[i]f some delegations of legislative power are constitutionally suspect, giving law enforcement agencies the opportunity to set the size of their own budgets through police seizures must be one of them.”

The nondelegation concerns on this point are compelling, and, by themselves, should be sufficient for finding that asset forfeiture in a post-Reform Act world would still be unconstitutional. Nevertheless, implicit in these arguments is an important policy matter which must be examined, one which takes into account the externality effect of funding significant government operations, such as law enforcement, with assets forfeited from individuals.

If indeed it is agreed upon that drugs must be illegal, the logic of making drug trafficking unprofitable is compelling. The power conferred by drug profits is well-known, and has proven to be highly corrosive to the rule of law wherever illegal drug markets exist. Complications arise, however, when a government declares an interest in those profits through forfeiture, especially when the government is not required to pursue a criminal conviction as a prerequisite to forfeiture. Through a perverse irony, the government soon finds that it has a financial interest in the profitability of the drug market, and, therefore, a fiscal stake in keeping drugs illegal. Law enforcement agencies that depend on drug asset forfeiture come to have their own stake in the profitability of illegal drugs. In fact, one of the key measures of the success of drug interdiction efforts[sp2c]|[sp2c]driving up the street price of drugs[sp2c]|[sp2c]has an additional ironic effect of making black market trading in drugs even more profitable for those who remain market players. The end result is that law enforcement develops a stronger stake in not winning the drug war than in winning the drug war.

The second prong of this problem is that, because dependence on forfeiture causes the funding of law enforcement to become detached from legislative accountability, the body politic has no sense of the real cost of enforcing drug laws, and, therefore, the laws themselves are in danger of becoming irrational. Our democracy is founded on a fundamental principle: that freedom allows for a marketplace of political ideas to flourish. However, a political idea cannot be effectively tested by that marketplace if its cost cannot be weighed rationally against its impact or utility.

It flows from this precept that, in order for the body politic to rationally determine which public goods it wants from the government, it must have some sense of the cost of those goods through taxation, duties, user fees, and so on. The body politic must register consent to the cost of public goods by approving or disapproving of the actions of its elected representatives. This is, in part, the essence of “no taxation without representation” upon which our nation was founded. Without this ability to weigh the cost against the utility and effectiveness of public goods, we risk losing the underlying rationality of our system of government to arbitrary exercises of state and federal power.

Even under the best of circumstances, unlike the situation with private goods, taxpayers have “an incentive to give false signals concerning their preferences” as to their demand for public goods. Public goods are not price-rationalized by the market in the same sense that private goods are, so public goods are necessarily funded by a system of externalized costs and benefits. Because individual taxpayer demand has a minimal effect on the supply of a public good, ”by understating their demand they can aspire to enjoy the public good without paying the costs of provision.” In other words, everybody hopes to pay less tax while enjoying more benefits from public goods.

This tension between the promise of public goods and the need to pay for them constitutes, to a large extent, the very essence of politics. Voters tend to scoff at campaign promises precisely because they know that, while the ideal political accomplishment would be to offer the body politic a valuable public good which costs them nothing, every promise to create or expand the availability of a public good has a price which the body politic must eventually bear if that is indeed what it wants. This tension extends not just to government-provided goods and services themselves, but also to the underpinning laws which make them necessary. The cost of law enforcement, for example, ought to be considered in conjunction with the decision of whether or not to criminalize a certain thing or activity. Notwithstanding the litany of campaign promises to the contrary, making something illegal does not, in and of itself, end that thing’s existence. This is only common sense, and one would hope that the tension between costs and political goals would be enough to keep the government from reaching beyond the rational in determining what goods it promises to provide for the body politic’s consumption.

But what if politicians found a way to pay for an expanded public good without having to either raise additional revenue from their constituents or transfer revenue out of other programs? In a very real sense, this is what asset forfeiture has brought us. In explaining the need for a federal power of taxation, Hamilton wrote:

Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue, either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and in a short course of time perish.That Hamilton put the choice in such stark terms should give us pause when contemplating the revenue raising functions of any activity of the government, for these words express the very inherent danger in externalizing the costs of public goods (and thus government itself) onto individuals. Civil forfeiture, as it is practiced today by our government and the several states, is an exercise in arbitrary will in which individuals are indeed subjected to the very sort of “continual plunder” of which Hamilton warned. By giving law enforcement agencies the power to loot, plunder, and eat what they kill, our laws teeter on the brink of losing their necessary rational relationship with our institutions of democracy.

 

Downing says that monetary incentives for drug arrests, like asset forfeiture and federal grants, encourage an attitude where police will make drug arrests by any means necessary, from militarized SWAT raids to paid informants who admit to lying. “The overall effect is that we are losing ground in terms of the traditional peace officer role of protecting public safety, and morphing our local police officers into federal drug warriors,” Downing says.

Quotas and pressure for officers to make drug arrests – which profit police departments via federal funding and asset forfeiture – also encourage routine violations of the Fourth Amendment ban on unreasonable searches and seizures. The NYPD, for example, stops and sometimes frisks well over 500,000 people a year, the vast majority of them youths of color – the basis for a pending federal lawsuit challenging the policy on constitutional grounds. While New York Mayor Michael Bloomberg has defended stop-and-frisk as a way to get guns off the street, in fact, it’s more often used to arrest kids with small amounts of weed. Stamper adds that legalization would allow police officers “to see young adults not as criminals, but members of their community” – and start respecting those young people’s civil liberties.

 

Asset forfeiture provides a massive profit incentive for police to make drug busts and there is a concerning lack of legislation or even law enforcement policy/procedures regarding the use of Confidential Informants in drug busts, a deadly combination. Tallahassee PD were in a situation in which it was legal to pressure a terrified young woman with no training, who may have been involved in very small-scale drug dealing, into buying $13,000 worth of cocaine and MDMA along with a handgun. Since Rachel’s death, the FL state legislature has passed some restrictions on the use of confidential informants in drug cases in what is fittingly called “Rachel’s Law,” stating “a confidential information safety act that requires law enforcement to take into account someone’s age and maturity, emotional state and the level of risk a mission would require before sending them out on a sting Under the law, police cannot promise an informant more lenient treatment, as they did with Hoffman”. Rachel was clearly not in the proper emotional state to be part of such a high stakes sting operation, as can be seen from the tears streaming down her cheeks in the arrest photos. I doubt that the law stops police from offering deals to drug defendants in exchange for lower sentences and it remains to be seen if law enforcement become more circumspect in their use of CI’s.

I did not ever personally meet Rachel, but her involvement with festival culture and involvement with MDMA and cannabis do not paint a picture of a woman who was comfortable around firearms. The police officers overseeing her must knew she was in over her head, but insist that drug informants are just doing what they usually do, but while under police supervision. Rachel was not meeting with friends on the night she died. At sentencing, her killer, Deneilo Bradshaw, faced a potential death penalty. Because of the need to climb the chain as quickly as possible to make the big seizure, Tallahassee PD officers, considering Rachel Hoffman a criminal, sent her to purchase drugs and a gun from someone she didn’t know. Now after her murder, her murderer could be executed and the police will have a few less drug dealers to worry about… for a day or two until others move in to take their place. This police-initiated violence must stop. Killing Mr. Bradshaw does absolutely nothing except ruin another family. Why are we allowing this to happen to our friends in our communities? Tallahassee PD seems to be taking the stance that some criminals took each other out and now the state will finish off the last one with death or prison. The police had no regard for the fact that Rachel was really only involved with cannabis and, because of her commitment not to turn in any marijuana dealers, Rachel was used in a sting operation to meet strangers to purchase cocaine and a gun. Tallahassee PD saw it as a criminal (someone who is expendable in their eyes) killing another criminal when Rachel died. Justice will be served when Mr. Bradshaw is punished, if Tallahassee PD is to be believed, but that will accomplish nothing. Rachel and Deneilo’s customers have long since found new sources for cannabis, MDMA, and cocaine if they want those substances.

Rachel did not seek legal advice from an attorney and the attorney who had handled her previous drug arrest (for cannabis) was not contacted. Rachel naively believed that the police would protect her if she just did as she was told. In fact, an officer involved with the investigation stated that making offers to un-booked drug defendants was a regular practice and attorneys were rarely contacted. She was used as an untrained Confidential Informant to buy a gun with extremely limited police supervision. Tallahassee PD did not feel that they had a duty to protect or train Rachel because she was a criminal. Florida’s draconian drug laws, specifically regarding cannabis, allowed police to make vicious threats regarding the prison time that Rachel was facing, especially because she had recently been referred to a drug court diversion program after an earlier arrest for cannabis possession. Rachel was not told that law enforcement officers do not have the power to make deals with someone they arrest without involving attorneys, and the police certainly implied that, by participating in this bust, Rachel would be able to go home afterwards. One of the most frightening aspects of Rachel’s case is that the police did not do anything wrong or illegal as far as our government is concerned. Florida is not a good place to use or sell cannabis. That may change in 2014 as United for Care pushes for medical marijuana in 2014, but the result remains to be seen. Tallahassee Police were not only enabled by our state and federal governments, but actually were encouraged by drug war legislation to put Rachel in a deadly situation for which she could not possibly have been prepared.

Sadly, our state and nation’s prohibitionist policies, specifically asset forfeiture policies related to drug crimes, actually give police a significant profit incentive to use untrained Confidential Informants to make drug busts. Police around the country have consistently opposed any regulation or oversight of the way in which they use Confidential Informants because, as many narcotics officers/detectives will admit, they rely on CI’s to make high level drug busts and insist that restricting the use of CI’s would cripple their ability to enforce drug laws. Police rely on high level drug busts to seize the assets of drug dealers as proceeds of crime or property used in the commission of a crime, which means that law enforcement agencies make hundreds of thousands or even millions of dollars each year from asset forfeiture. In 2012, the DEA seized $750 million in assets. No crime has to be committed and no arrest has to be made for law enforcement to seize assets based on a preponderance of evidence suggesting possible past or future involvement of the asset, not even the person, in criminal activity involving drugs. Large amounts of cash are frequently seized because police supposedly suspect that anyone carrying a large amount of cash plans to buy drugs or is selling drugs. People with dark skin or on their way to a festival are most likely to fall victim to and be ruined by asset forfeiture. Many victims of civil asset forfeiture (where no arrest is made) lack the resources to get any of their assets returned as asset forfeiture is not a profitable area of specialty for attorneys and, even with a good attorney (which is not free), it is nearly impossible to have all of your assets returned.

Many people are able to travel from festival to festival by selling pins or clothing or jewelry and vendors deal almost exclusively in cash. The amount of cash that festival vendors carry is large enough for police to seize on suspicion of involvement in drug activity and is generally in the smaller denominations that law enforcement associates with drug dealing. Seizing the assets of a vendor travelling between festivals often means that they are broke and stuck far from home, without the resources needed to hire an attorney to get their assets back. Their only hope is for a member of their family, often meaning a member of the festival community, to come to their aid. If this hypothetical vendor decides to give another member of the festival community a ride to the next festival in exchange for gas money and that person happens to have drugs on them, then the vendor’s assets and vehicle can be seized even if they did not have knowledge that drugs were in their vehicle and had no intention of buying drugs at any point. Many law enforcement agencies will admit that they rely on asset forfeiture as an essential part of their operational budgets, though forfeiture funds are intended for use in purchasing additional or supplemental, specialized equipment that departments need. Law enforcement’s reliance on Confidential Informants to lead them to big drug busts and potential financial windfalls means that there are many, many more Rachel Hoffman’s in this country being pressed into working as CI’s in drug busts so police can work their way up to big-time dealers with significant assets to seize.

By ending the use of CI’s in narcotics investigations, we can deal a serious blow to police departments’ ability to make drug cases. Through forfeiture reform, we can remove the profit incentive for making these drug cases, at which point law enforcement agencies will operate on much smaller budgets and become more circumspect in their policing practices. Without even ending drug prohibition, we can strongly discourage police from targeting anyone involved with small amounts of drugs because it will not make financial sense for law enforcement agencies to arrest non-violent drug offenders.

Forfeiture reform will allow police to target violent criminals and raise their frequently embarrassingly low clearance rates for homicides in cities where there is drug money to be seized. I know that it is different elsewhere, but when police departments in central Florida look to save money, DUI enforcement is consistently a lower priority than arresting marijuana users. That’s a misguided allocation of resources. Watch The Wire for a frighteningly realistic portrayal of a police department with a sub-50% homicide clearance rate that continues to pour resources into trying to make drug cases. Characters come and go, but the supply of drugs in a semi-fictionalized Baltimore is remarkably steady throughout the series. The constant supply of drugs means that there is always a new drug case to be made and the work of the detectives and officers in the show is frequently rewarded by promotions.

You can take an unsympathetic view of Rachel’s situation and say that she decided to be a snitch and this was a risk of which she should have been aware. Rachel’s decision to avoid marijuana dealers she knew in favor of doing a buy-bust gun purchase from some unknown dealers may seem strange, but it speaks to her commitment to people involved with a drug traditionally associated with festivals (cannabis). Rachel was forced into this position due to a myriad of structural circumstances encouraging police officers to force her to act as a CI without proper guidance, training, or an understanding of what she was agreeing to or what the risks would be. Remember, she was a 23-year-old recent college graduate who was always described as a happy, loving person and her involvement in consumption or small-scale distribution of cannabis and MDMA led police to believe that she was their connection to some dark druggie underworld. Anyone who is part of the festival community, even in Florida, understands that cannabis and MDMA distribution and use are not associated with firearms. Firearms are entirely against the norms of festival culture and I have to believe that Rachel was terrified at the prospect of purchasing a handgun. As a 23-year-old recent college grad who had been held in custody for hours with enough prison time to ruin her life hanging over her head, it’s hard to blame her for just doing what the police said she needed to do to go home rather than be thrown in jail with the prospect of a lengthy prison sentence ahead of her.

Arresting a single murderer, rapist, or other violent predator takes a lot of manpower and financial resources. It simply is not cost-effective or profitable for police departments to protect their communities from violent criminals if those violent criminals are not involved in the distribution of drugs, which adds the profit incentive of asset forfeiture. Police departments tend to see all felony arrests equally regardless of the crime committed.  A detective who rounds  up a ring of 25 drug dealers and seizes a quarter of a million dollars over a 3-month investigation looks like he’s doing a hell of a lot more than the homicide detective who has spent all year tracking down one brutal murderer. The hours involved in policing drug dealers often mean that narcotics investigators may clock a lot of overtime. There simply is not any profit incentive for law enforcement agencies to investigate violent criminals not involved in drugs when there is a limitless supply of potentially lucrative drug cases to be made. Asset forfeiture is perhaps one of the most significant reasons for the massive growth in the percentage of any given police department assigned to narcotics investigation.

Police corruption is another issue entirely as the actions of Tallahassee PD were likely justifiable under federal and state laws at the time as they have not been particularly shy about admitting to their disregard for Rachel. Narcotics officers involved in big raids for multiple years may become tempted to take a bit off the top for themselves when making seizures. An idealistic young cop might enthusiastically make these busts in a misguided attempt to eradicate drugs from our society, but after doing the same thing for year after year and seeing no change, then why not take some extra cash to supplement your unfairly low salary? We must not forget how police reach the big-time dealers: by forcing young people with relatively small amounts of drugs in their possession (like Rachel Hoffman) into working as unpaid, untrained Confidential Informants. An officer who made the deal with Rachel commented that these kind of deals are offered to “countless” drug defendants. Police were not profiting directly from Rachel’s arrest, but by forcing her to work as a CI they were hoping to score big eventually as they moved their way up the chain. Rachel just happened to be a convenient tool that was legally at their disposal to use. There is a lot of pain and horror and many lives are ruined along the way to large drug seizures, which ultimately have little to no effect on the supply, cost, or demand for drugs. Law enforcement officers are totally aware of the fact that they can never make a dent in the supply of drugs and I don’t believe that they even really want to at this point. As a former LAPD Deputy Chief put it, “it’s a cash grab, pure and simple.” There is no incentive to eradicate drugs (even if that were possible) when your department relies on a steady stream of drug busts in order to seize assets, which often make up a significant portion of an LE department’s budget.

Our country’s prohibitionist stance and policies allowing law enforcement seizure of any property potentially associated with drugs (based on a preponderance of evidence) led to the death of a beautiful, vibrant young woman who was part of the festival community that I have recently become involved with through volunteering with the AMPLIFY Project. AMPLIFY is a side project of Students for Sensible Drug Policy that works to bridge the gap between direct service harm reduction providers and drug policy reform advocates. Rachel’s death is an outrage that was remembered in a beautiful way at a regional festival in mid-May 2013, the Purple Hatters Ball at Spirit of the Suwanee Music Park. The energy and passion of the people involved was really beautiful. Artists, promoters, and organizers all encouraged the crowd to keep Rachel’s memory alive and use the energy they felt throughout the weekend to spread positive change in their communities, with Mama Margie asking for support for the Rachel Morningstar Foundation, dedicated to ending the use of Confidential Informants to make drug cases.

Rachel’s story and her mother Margie’s words stayed with me over the following weeks as I got ready to volunteer for AMPLIFY at a major festival, Summer Camp 2013 in Chillicothe, IL. Our booth was set up in the social justice non-profit “Make a Difference Area” and we were given the chance to put on a workshop on the Soulshine Stage about the AMPLIFY Project and our vision of music as a movement for social change. I took the opportunity during my time on stage to discuss our beautiful celebration of Rachel’s life at Purple Hatters Ball a couple weeks prior and tell the story of her tragic death while under the supervision of Tallahassee PD. The people who had gathered for our workshop on that Sunday afternoon were receptive and supportive of my calls to end the use of Confidential Informants in drug cases, but there weren’t many people who asked for more information about the story and what they could do to help and I was upset at the lack of outrage. I’ve only recently gotten involved in festival culture, but it feels like a big family where everyone helps to support everyone else. There should be more outrage regarding Rachel’s situation or at least a strong drive to change prohibitionist drug policies. The festival community must unify and make our voices heard in response to government indifference for the safety and life of Rachel Hoffman, a member of our community. Think about her case, think about her murder, think about your friends, think about others in the festival community, and understand that many of these people you consider family could have been Rachel Hoffman.

Rachel Hoffman’s murder and the position that she was put in were unfortunately a result of prohibitionist policies that encourage all police departments to pressure anyone arrested on drug charges to turn in dealers above them in order to avoid life-destroying, draconian prison sentences for felony drug possession or distribution. Police will continue this process until they have caught the big fish, and seized every asset possible, and then they start over, watching the violence unfold as new dealers fight it out to fill the void in the market and become the next target for law enforcement. To a young, terrified recent college grad, being pressured into working as a CI then subsequently being used to purchase a gun and more drugs than she had likely ever dealt with was a horrifying situation to be put in. The massive profit motive for law enforcement agencies to bust the largest drug dealers through the use of CI’s in order to seize assets along with the general lack of regulation regarding the use of Confidential Informants means that many members of the festival community could very easily find themselves in the same position as Rachel. This is especially true when highway patrolmen or small town sheriffs near remote festival locations decide they are going to specifically target festival attendees.

In May, I spent an intense 10 days volunteering at the AMPLIFY booth at Summer Camp 2013 then put on a suit and took a step back from a wonderful, but muddy festival to attend and volunteer at Club Health San Francisco 2013 the following week. I realized that I was correct in my belief that the festival community is all one large global family. I also realized that drug prohibition is the main barrier to making nightlife safer. Asset forfeiture is a major tool used by nearly every law enforcement agency to wage war on festival culture in the U.S. However, not only are people in the U.S. working to change the status quo and improve harm reduction, but there are people all over the world working to preserve their form of nightlife or festival culture. We must work together to improve the safety of our events despite the best efforts of law enforcement to keep these events dangerous by banning harm reduction practices such as reagent testing and opposing drug education. Drug prohibition ultimately forms the point of origin for nearly all problems faced by bars, nightclubs, and festivals, and creates the greatest barrier to effective harm reduction. Members of the festival and nightlife communities, which overlap heavily in the challenges we face, must make our voices heard in the drug policy reform community and mainstream society, including politics, to prevent the persecution of young people like Rachel due to absurd laws that provide a greater incentive for drug enforcement over prevention of or investigation into violent crimes

Part 2 coming soon. Stay tuned for more tips on staying safe from forfeiture units, how to advocate for policy change and an intense exploration of what the Camp Zoe seizure along with Jimmy Tebeau’s plea and imprisonment means for the festival community.

The U.S. government has declared war on the festival community and we must unite to do what we can to put an end to drug prohibition to improve harm reduction and treatment services. The drug policy reform community must work with nightlife/festival communities to address where substance use occurs, discussing how and why different substances may cause problems.

Initial inspiration for this article came from reading Ryan Neeley’s article on The Grateful Web: “Governments Secret War on Music Festivals” and speaking with Eapen Thampy (ED, Americans for Forfeiture Reform)—thank you for the idea and forum to expand on my thoughts.

I read James Bovard’s “The Continuing Forfeiture Scourge” immediately upon completing this article and was stunned at its applicability to what I have discussed. Bovard explains a lot of these concepts in more depth, more explicitly and eloquently than I have done here.

Attorney General Marty Jackley announced today that the South Dakota Highway Patrol  has been awarded $240,936 for a SWAT vehicle to be used in drug investigations. This purchase will be used as a multi-agency response vehicle for deployment throughout western South Dakota. The money was awarded out of the Drug Control Fund. The award will assist local law enforcement in drug control and apprehension purposes.

“The Drug Control Fund allows law enforcement to combat controlled substance abuse by funding local programs with monies seized from drug arrests,” said Jackley. “These funds will assist law enforcement across western South Dakota to better protect all communities.”

“The Highway Patrol considers interdiction of illegal drugs to be one of its top priorities. Having the capability of a SWAT vehicle for use by state and local law enforcement across western South Dakota will help us fight illegal drugs and keep our officers, our state and its citizens safe,” said Colonel Craig Price.

Our colleagues at the Institute for Justice have graded South Dakota’s asset forfeiture laws a C, noting:

And law enforcement has access to 100 percent of the money it brings in from civil forfeiture.  Initially, the assets are distributed to a “drug control fund” managed by the Attorney General, but law enforcement can then request that money for its own use.  There is no requirement that law enforcement collect or report information on the use of forfeiture or its proceeds.  

When heavily armed federal agents stormed Jerry’s farm, they sent a message to Sharon as well. Threatening to shoot the grandmother in her 70’s if she didn’t stand aside, the machine gun toting militia made a quick and dirty exit by driving their tanks through her gated property next door. Sharon’s dream of retiring on the farm has become a living nightmare. Despite being prescribed anxiety medication to deal with the persistent panic attacks, she made the tough decision to sell the farm and move out of state. The 100-acre portion that her grandchildren were supposed to inherit was also put up for sale to pay off the mounting legal debt. Jerry’s 8-acre farm is all that is left of the property that three generations worked their whole lives to pay for and it’s on track to be handed over to the government this summer.

Jerry’s wife, Tracey, has moved to a small 1,000 square foot home in a nearby town, in preparation for the forfeiture. In addition to sending her husband to prison for ten years and her stepson’s five-year sentence, the government has displaced this loving mother from the home she has built over the last two decades.

Enough is enough! It’s time to take back our communities and reform the forfeiture laws that allow generations of hard work to turn to dust.

Incredibly, Alamance County Attorney Clyde B. Albright, is now claiming that withholding distribution of the funds on account of violating residents’ rights contravenes due process:

“It’s hurting us and it’s going to continue to hurt us,” [Sheriff Terry] Johnson said. “They are withholding it because of the DOJ lawsuit.”

The DOJ filed a lawsuit against Johnson last December over the charges of discrimination.

The forfeiture proceeds are not allowed by law to supplant the Sheriff’s Office general budget. They are used to buy equipment the Sheriff Office’s might need. Johnson said the county doesn’t have the available funds to offset the losses incurred from the frozen proceeds. The Sheriff’s Office received $342,759 in federal drug asset forfeiture proceeds in 2011-12.

County Attorney Clyde Albright said Tuesday he requested a hearing with the DOJ’s General Counsel in Washington D.C. to resolve the situation but hasn’t received a reply. Albright said the DOJ hasn’t provided the county a reason why it continues to withhold the drug forfeiture money and that the DOJ should follow due process in the case.

Alamance County Sheriff’s Office spokesman Randy Jones said he didn’t understand how the DOJ lawsuit and the frozen drug asset forfeiture proceeds were related and on what grounds the DOJ was withholding the proceeds. Chris Lavender, Sheriff wants DOJ to release drug forfeiture assets, The Times-News, 28 May, 2013.

Of course, the DOJ only enjoys possession of the funds because the Alamance County Sheriff’s Office gave the DOJ the money in hopes of using the DOJ’s equitable sharing program to circumvent North Carolina’s constitutional requirement that forfeitures go to education.

Claimant argues that the Complaint should be dismissed because the United States did not timely notify Claimant of its intent to initiate forfeiture of the Defendant currency. Section 983(a)(1)(A)(iv) of the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) provides, “In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.” A claimant is entitled to judicial relief if he received inadequate notice. Section 983(e) states:

(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person’s interest in the property, which motion shall be granted if – - (A) the Government knew, or reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide such party with notice; and (B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.  18 U.S.C. § 983(e)(1).

The circumstances surrounding this case do not support dismissal of the Complaint. The Defendant currency was seized by law enforcement on November 28, 2011. Following the seizure, the United States attempted to notify Claimant by sending written notice to multiple addresses on several dates, including January 9, 2012, February 29, 2012, and March 16, 2012. Claimant ultimately received notice on approximately March 6, 2012, ninety-nine days after the November 28, 2011 seizure. It is apparent that the United States reasonably attempted to notify Claimant within the ninety-day time frame. Moreover, the delay in Claimant’s receipt of notice was minimal. United States of America v. $63,530.00 In United States Currency, No. 8: 12-CV-201 (D.Neb. May 10, 2013).

The memorandum and order is silent on which forfeiture notice(s) the court considered reasonably calculated to reach the claimant within the ninety-day time frame contemplated at 18 U.S.C. § 983 but one hopes that the court does not accept the latter notices, both apparently sent more than ninety days from the seizure, as probative of reasonable attempts. The opinion is equally silent on which notice(s) the claimant received and why the court believes it is apparent that the United States reasonably attempted to notify the claimant within the ninety-day time frame.

The court does, however, seem dismissive of the ninety-day deadline that Congress imposed on the Government pursuant to the Civil Asset Forfeiture Reform Act of 2000–which seems a bit unfair in light of repeated Eighth Circuit holdings “that district courts may require claimants in forfeiture proceedings to comply strictly with [the Supplemental Rules] in presenting their claims to the court.” United States v. $1,000.00 Refunded to Mango Creek Properties, Inc., No. 8: 11-CV-372 (D. Neb. Jan. 27, 2012) quoting United States v. Three Parcels of Real Property, 43 F.3d 388, 391 (8th Cir. 1994).

Perhaps connected, Virginia ABC apparently received three recent payments totaling slightly more than $753,000 from the U.S. Department of Justice’s Asset Forfeiture Fund. Such payments are frequently used to evade state laws directing forfeitures to education. The process, known as equitable sharing, permits state agencies (including those otherwise restricted from profiting on forfeitures) to give seizures to federal authorities. Federal authorities, in exchange, forfeit the property and give a percentage of the proceeds (frequently 80%) to the agency that brought the seizure.

In an attempt to avoid a question that I submitted to my local newspaper, Sheriff Chris Clinton of Towns County made harsh accusations directed toward me that have nothing to do with the issue at hand. The question was never published in the article to correspond with the response given by the sheriff, leaving the consumers of the Towns County Herald with new questions. Such as how could an attorney be used to intimidate law enforcement? And more importantly, leaving the question originally asked unanswered and unheard.

My question was for the sheriff of Towns County, Chris Clinton.

“If a person is found innocent of his or her criminal charges, any seized property is still subject to forfeiture pursuant OCGA 16-13-49. Most of the time this happens before a person is ever tried for the accusations against them. Legal representation is not provided for those who cannot afford to hire an attorney, making a forfeiture case difficult to win. My question is not about the legality of this issue, but rather the personal opinion of our sheriff in regards to this issue, since the option to pursue such a case is at his discretion. How does our sheriff feel about having the rights to a person’s personal property before they are even found guilty of a crime? Or after they are found innocent in a court of law?” –Chris Ledford

His response typical of many politicians these days, to change the subject by calling people names.

Was “recently it has come to my attention that brazen criminals are now attempting to intimidate witnesses, and law enforcement through attorneys, social media, the press, and other means. For these individuals I want to be very clear: As long as I’m allowed to serve as Sheriff, I will aggressively investigate and arrest ALL drug dealers.”

“By seizing their unlawfully obtained assets, which they did not work for, the incentive to commit the crime is taken away. That is in my opinion the reason the State of Georgia has decided that law enforcement should seize those assets –assets purchased with the proceeds of poisoning our children and our communities.” –Chris Clinton

Now, this might have been a good answer if I was asking for what the state of Georgia had originally intended for this law to do. And I’m sure the sheriff had good reason to completely ignore the fact that I’m talking about people who have never even been convicted of a crime.

But regardless of whether or not the sheriff chose to answer my question, or just simply beat around the bush a little bit. I think it’s a good question for every sheriff of every county in the state of Georgia, because it shows the moral character of the sheriff that the people elect in their county to serve and protect them. And I think most people would agree, that if a person is found innocent of the accusations against them, their property should be returned!

But I’m not trying to talk to you about the morality of police these days, or how bias the media can be. Instead, I’m trying to bring to your attention something far more important! A law so unjust, so unconstitutional, that it questions the very freedoms that our country was founded on. I’m talking about civil forfeiture.

And I know most of you are probably thinking about what society has come to accept when it comes to the seizure of property and its involvement with criminal activity. Which is if you get caught committing a crime, the police are going to take your stuff! But this commonly thought of criminal procedure is not to be mistaken for civil forfeiture.

Civil forfeiture as Sheriff Clinton pointed out, was designed to penalize a person engaged in criminal activity. I would never debate this. In fact, I agree that if a person is found to have committed a crime, they should be punished accordingly. But to deprive that person of certain procedural rights, such as the right to jury or the right to counsel, and to force that person to represent themselves in a case with such a direct relation to their criminal case that any question they answer could have a devastating effect on the outcome of that criminal case. To label a person guilty as charged! …Well these are just a few of the reasons that I strongly stand against civil forfeiture, and the government’s authority to legally rob hard working Americans all across the country.

Because you see, civil forfeiture is not just a way to punish criminals. It’s a civil action against the property itself. This means you don’t even have to be charged with a crime before they can take your stuff! In fact, my studies from the US department of Justice have shown that up to 90% of Americans facing civil forfeiture are never even charged with a crime, much less convicted.

But the saddest part about this law is that it’s not even necessary in getting the same end result of its naive intentions for punishing criminals. That’s because There is already a criminal statute that allows the forfeiture of these same assets upon a person’s conviction. So why take a person to civil court for the possession of their property if those possessions are going to be taken anyways after a criminal proceeding? What kind of incentive could the government possibly have in doing so? Well, aside from being able to take from the innocent, Georgia allows 100% of the proceeds from civil forfeiture cases to go to local law enforcement. This offers a huge initiative for police to target an individual based on their property instead of their actions

Now people, we need to reform civil forfeiture law, And I’m not the first person to realize this. In fact, There are many organizations out there who are fighting for our rights, and will continue to do so as long as our freedoms are in jeopardy. One of which, a litigation team known as the Institute for Justice has already introduced the need to reform civil forfeiture law. They’ve gone to Georgia law makers with a proposal of three key elements. One being that law enforcement should not profit from civil forfeiture. Two being that an innocent owner not charged with a crime should have no problem getting their property back. And most importantly, A conviction should be required before civil forfeiture takes place!

But the truth is they need your help in getting this pushed through congress. That’s why I encourage each and every one of you to stand up for what you believe in. Let your representative know that you support the legislation designed by the Institute for Justice. And lets put an end to the hardships of civil forfeiture, and make our country a better place for tomorrow.

Addendum: The Institute for Justice’s model forfeiture legislation is here. AFR’s prior coverage of Georgia forfeiture issues is here.

Retired law enforcement veteran Stephen Downing, former captain of detectives in the LAPD, says he has not seen proof that the police officers failed to adequately respond to information in this case; indeed, police cannot possibly crack every case and investigate every angle all the time. At the same time, we must recognize that police are incentivized to go after certain crimes — like drug crimes — and not other, far more heinous crimes, like rape.

In the first place, federal cash giveaways make police departments’ reactions to drug cases much more swift and severe.

“The statistical demands of the drug war and the grants that come from the federal government — all they do is incentivize our local police to chase drugs and chase seizures so they can supplement their budgets,” Downing said. “We call that ‘policing for profit.’”

Furthermore, allowing military training of local police has “turned our police into drug warriors,” instead of “police officers and peace officers.”

“Every police department, every sheriff’s department,  and the federal government have personnel that are dedicated 100 percent of the time to drug enforcement,” said Downing, “and the result of that is to use police resources for that purpose.”

Perhaps the strongest example of how drug war policing can distract resources from more pressing problems is the use of department laboratories. In Ohio, police agencies across the state have sent more than 2,300 untested rape kits to a state crime lab for testing. Some of them are decades old, and could contain vital clues regarding suspects in rapes. But they’ve been backed up in police departments across the country.

“What they don’t talk about is why do they have that backlog in the first place?” said Downing. “The answer is that drugs take a priority because they often involve people in custody, and they’re going to be in court, so when they show up in court, they’re going to have those tests. Thousands and thousands of tests run through our police labs for drugs when most of the time it’s a personal use decision. Most of the time it’s a recreational use of drugs rather than an abuse of drugs. But our criminal justice system is completely involved in dealing with drug crime rather than dealing with crime that truly affects public safety, like property and crimes against persons.”

Praising the man who helped Amanda Berry escape, Stephen Downing also says police need to become more involved with their communities.

“The community is involved in solving these cases and the willingness of people is helpful,” he said. “If the police would recognize more the true value of their community — that the people are the police and the police are the people — rather than chasing drugs and asset seizures and policing for profit modalities, all our communities would be better off and more aware.”

 

“Based on information from a confidential informant, the Drug
Enforcement Group began investigating Peloza for drug activity. Investigator
Jonathan Rivamonte made contact with Peloza and made arrangements to
purchase approximately one ounce of marijuana for $355. After that sale,
Rivamonte asked Peloza for a larger quantity. Peloza agreed to sell him another
six ounces of marijuana for about $1500. The sale was not completed, as Peloza
was arrested and charged with felony possession with intent to deliver marijuana.

Peloza entered a deferred prosecution agreement in which he pled
guilty to misdemeanor possession. Peloza successfully completed the agreement
and, upon payment of a $250 fine, Peloza’s conviction was ordered expunged. In
the meantime, the State filed a summons and complaint for the forfeiture of
Peloza’s car, a 2009 Mitsubishi Lancer GTS, because it had been used to transport
drugs. After the criminal case was resolved, the forfeiture case proceeded….”

“…When we consider the factors in this case, it is patently obvious that
forfeiture of Peloza’s car is excessive. Certainly, drug sales are not to be
encouraged, but Peloza was ultimately convicted of mere possession. Peloza’s
offense did not involve violence, did not result in injury to anyone, and was not
gang related. There is no suggestion that Peloza is a large-scale drug dealer, and
he had no prior criminal record. The total value of the drugs he sold was less than
$2000. The State apparently does not view the offense as exceptionally serious, as
it was willing to permit a disposition resulting in expunction of the conviction and
payment of a small $250 fine. The maximum fine for misdemeanor possession
was $1000, and even for the originally charged felony, the maximum fine was
only $10,000. Forfeiture of a $16,000 vehicle is unconstitutionally
disproportionate to the offense at hand. Upon remand, the circuit court shall
vacate the forfeiture order, direct return of the car to Peloza, and dismiss the
State’s forfeiture complaint.” State v. Peloza et al., Wis. Ct. App. 2012AP1650 (Unpublished)

H/T  Bruce Vielmetti of the Milwaukee-Wisconsin Journal Sentinel

In Maryland, the Baltimore Police Department is reportedly using asset forfeiture funds to fly a member of the department brass to Sweden for a peace-keeping course offered by the United Nations.

North Carolina considers a bill to expand asset forfeiture against real property for nuisance abatement. Included in the bill is a provision allowing authorities to retain forfeited property for official use. Assuming retained use did not constitute forfeiture proceeds, the bill would appear to provide departments who’ve had access to the U.S. Department of Justice’s equitable sharing program suspended a way to continue legally profiting from forfeitures. North Carolina’s Constitution requires that “the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.” North Carolina law enforcement departments largely run seizures through the U.S. Department of Justice’s equitable sharing program to evade such constitutional directives.

Pennsylvania police chief resigns amid allegations of “unauthorized withdrawals and deposits on the account funded through the Department of Justice’s Asset Forfeiture Program.”

Illinois ranked last (again) among the several states in personal freedoms as a result of their draconian asset forfeiture laws and anachronistic (and draconian) drug laws.

Alabama authorities released figures indicating a $14,000.00 state trooper cost for a raid in which troopers seized some 1,600 gaming devices and more than $220,000.00 in cash from the Victoryland Casino. Law enforcement claim the gaming devices are being used illegally. Victoryland Casino disagrees. Law enforcement are currently fighting to remove the presiding judge due to the judge’s previous unwillingness to sign a warrant authorizing the seizure of the gaming devices.

Questions raised about an outgoing Georgia sheriff’s rapid depletion of the asset forfeiture fund account: “The federal forfeiture account in July had more than $2 million, but by December had about $1,000 after checks had cleared after the audit, Woodruff said. The audit report showed that more than $1.1 million in merchandise or funds from this account were given to Georgia State Patrol headquarters in Atlanta to be distributed to posts statewide.” A retired Chief Deputy wrote a letter in October warning that the give-away constituted a concerted effort to sabotage the incoming sheriff.

In Missouri and Montana, city councils approve expenditures of asset forfeiture funds while expressing concerns that forfeiture fund accounts are stocked by seizing property from people who haven’t been convicted of crimes.

The Asset Forfeiture bill for 2013 has passed committees in both the Tennessee House and Senate, which is good news.  The bad news is that the bill was entirely rewritten first.

In what is called an amendment, the entire wording of the bill (HB1078 in the House) was literally deleted and new wording replaced it.

The original bill provided a “second opinion” had to be obtained from a judge before the cop who stops you on the roadside could take your stuff – cash, car – even your house.  Only after the judge had approved the sense of the officer that there was probable cause to support the claim that your property had been the proceeds of or used to perpetrate an illegal act could the seizure warrant be issued, and your stuff be taken by the officer.  Then you would still have the opportunity to defend your ownership in court:  If you were found innocent, or not prosecuted at all, then your stuff had to be returned to you.

Under present law, the officer takes your stuff, gives you a receipt that tells you he has it, and you can file suit to recover it – after a forfeiture warrant turns ownership over to the agency involved.  The officer’s alleged “probable cause” is heard by the judge in an “ex parte” hearing – you are forbidden to be present as ownership of your things is disposed of.

That is what we had hoped to end.

What the amendment – the complete rewriting, actually – accomplished was to change the forfeiture hearing from ex parte to one where you are invited to defend your ownership, and show that there was no crime or other excuse to take your stuff.  That is a big step, and beneficial, for sure.  But it still allows them to take your stuff, and you have to go through a legal procedure where you are standing alone against an entire institution of experienced and authoritarian professionals, to show that you are not guilty of any illegality, and neither is your stuff.

The District Attorneys of the state could not hide their complicity in “Policing for Profit,” and had to agree that the current process in simply inexcusable.  But they persuaded – with the help of the bill’s sponsor, I have to say – the committees that there was a necessity to allow the takings on-the-spot to remain in the law.

Again, Representative Barrett Rich is to be commended for bringing the subject to the Assembly.  And the result will, indeed, be a significant improvement in property right protection.  But significant and sufficient are two different things.

“As the two top law enforcement officials in Navajo County, we cannot allow the Rutherford Institute’s ill-informed propaganda – “Governmental highway robbery: Asset forfeiture and the pillaging of the American people” (March 29) – to pass without a fact-based response. John Whitehead’s cynical column, passing off two cherry-picked anecdotes as an asset-forfeiture crisis, does Navajo County public safety and our taxpayers a grave disservice.

The truth? Far from terrorizing innocents, asset forfeiture allows the Sheriff’s Office, the County Attorney’s Office and local police departments to use money and property legally seized from drug syndicates and human smuggling cartels to fight those very same criminals.

At a time when Navajo County is resource-strapped – the county is down 76 positions compared to 2009, including six prosecutors, while current county revenues stand at 2004 levels – this funding taken from criminals can mean the difference between doing more with less or doing nothing at all.

While Rutherford’s writer insinuates that police agencies target the defenseless poor to grab their life savings, nothing could be further from the truth. Whitehead conveniently ignores the requirement that probable cause exist before a criminal stop can take place, much less an asset forfeiture. Additionally, Rutherford’s hyperbole – that police officers and prosecutors represent “an overlord bent on depriving us of our most inalienable and fundamental rights” – ignores the fact that asset forfeitures are contested in court and require the approval of a judge.

No one in Navajo County law enforcement is bent on putting “brow-beaten subjects in bondage.”

Most of the seizures in Navajo County come from criminals using the I-40 corridor to transport drugs and cash, or using our surface streets to move drugs, money and human cargo while avoiding the freeway. Once seized, these criminals’ resources are plowed back into crime prevention efforts like the Navajo County Major Crimes Apprehension Team (MCAT), a multi-agency effort uniting the county, the Arizona Department of Public Safety and five local police departments.

Navajo County MCAT – which we couldn’t afford without asset forfeiture funding – made more than 500 drug-related arrests in fiscal year 2012. MCAT officers confiscated more than $2 million worth of drugs, including 778 pounds of marijuana, more than 8,000 grams of meth and 5,844 grams of heroin. We seized 34 vehicles, 23 weapons and nearly $200,000 in cash.

According to Rutherford – a group that not surprisingly supports drug legalization – public safety and taxpayers should be deprived of resources essential to fighting crime, while criminal cartels should be allowed to keep the proceeds of their lucrative illegal enterprises. This approach would gut highly effective operations like the Southwest Border High Intensity Drug Trafficking Area Arizona Partnership, which brings together federal, state and local assets to secure our border against drug traffickers. Locally, we would be forced to gut valuable efforts like the We Tip crime hot line, the Partnership For a Drug-Free America and the Show Low Drug Court.

Rutherford suggests that offices like ours, tasked with keeping the public safe, function as “militarized extensions of the government.” That accusation falls flat when you consider the source: a think tank playing fast and loose with the facts while serving as a legitimate-seeming extension of narco-terrorists and criminal cartels.” Navajo County Attorney Brad Carlyon and Navajo County Sheriff K.C. Clark, Asset forfeiture a valuable tool for public safety, taxpayers, The White Mountain Independent, 05 Apr. 2013.

A couple of quick thoughts:

1.) Carylon and Clark’s statement about the Rutherford Institute (and by extension anyone supportive of drug legalization) is insulting and wrong. Furthermore, it states the relationship backwards. Drug-prohibition enforcement subsidizes violent narco-terrorism by inflating the profitability of selling illicit drugs and directing control of supply and distribution to violent cartels. These aren’t new concepts. They shouldn’t be difficult to grasp either. To be clear, prohibitionists do have cogent arguments against legalization. I find them wholly unpersuasive but there are reasonable arguments available. What Carylon and Clark advance though is nonsense.

2.)  Our biggest complaint isn’t that law enforcement aren’t using a legal process to self-appropriate private property (although we obviously object to illegal takings as well). Rather, we complain loudest at the legal processes permitting law enforcement to self-appropriate property from innocents. Carylon and Clark’s suggestion that individuals suffering property forfeitures are members of drug syndicates and human smuggling cartels does nothing to establish that they are in fact members of such criminal syndicates–as their wanton defamation of the Rutherford Insititute as “serving as a legitimate-seeming extension of narco-terrorists and criminal cartels” reinforces. Moreover, U.S. Department of Justice findings indicate a majority of asset forfeitures are administrative forfeitures–which require neither conviction nor criminal charge.

3.) Carylon and Clark indicate that taxpayers would somehow be deprived if police were to lack the power to self-appropriate through asset forfeiture. It’s a frequent refrain. It’s also false. Police appropriations properly rest with local elected representatives. Generally taxpayers and their representatives are neither given the power to appropriate those resources elsewhere nor are they under any duty to provide the funds for what police would do with asset forfeiture proceeds. Moreover, it is wholly inappropriate for police to determine whether and to the extent that they are “deprived of resources essential to fighting crime.”  A community’s power to control police appropriations is essential. It is the community’s power to compel the policing that the community wants. The degree that the community is not in charge of its police budget is the degree to which it lacks control over its police. It’s not mere coincidence that police militarization happened along with  these Achaean gifts of coercive federal law enforcement grants, police power to self-appropriate, and federal equitable sharing dollars.

Eight years ago this week, on a sunny, clear, but windy and hence cold day, near a wide spot in the road called Garryowen on the vast prairie of southern Montana an hour north of the Wyoming border, vans full of armed, SWAT-geared federal agents sped down I-80.  Garryowen is a private town owned by Christopher Kortlander that features, among other structures, a gas station, a convenience store, a fast-food outlet, an arts and crafts store (“The Trading Post”), and the Custer Battlefield Museum.  The vans skidded to a stop before the museum and the agents leaped out as they drew weapons, surrounded and stormed into the museum, and held its employees at gun point.

The agents were there to serve a warrant and collect evidence as to Mr. Kortlander’s alleged illegal sale, on eBay, of a cavalry uniform button.  Mr. Kortlander said he recovered the button on private land, which is legal; however, a Bureau of Land Management (BLM) agent asserted that, working undercover, he sold Mr. Kortlander the button, which contained a government “microdot” tag secreted on the back.  Mr. Kortlander responded that the button was exactly like numerous others in his collection and that he had shipped the tainted button by mistake.  He maintains that none of the buttons in his collection was recovered from public or Indian lands; sale or traffic in archeological resources from such lands is illegal.

The federal agents were unrepentant.  Three years and six months later, almost to the day, they stormed the museum again.  The agent who filed the 2005 affidavit swore out a new affidavit asserting that, while he was in the museum, he saw items containing bald and golden eagle feathers, the sale of which is illegal, and that, based on the testimony of confidential informants, Mr. Kortlander planned to sell these items.  More artifacts were seized, including an American Indian war bonnet, headdress, medicine bundle, and shield.

Over a period of four and a half years, the U.S. Attorney’s office in Billings, Montana, repeatedly threatened to file criminal charges against Mr. Kortlander, threats sweetened with offers of various plea bargain options.  Mr. Kortlander hired a criminal defense lawyer and fought back as best he could, but the years took a terrible toll financially and emotionally.  He feared he would be indicted, suffer through a lengthy criminal trial, and be sentenced to years in federal prison.  Courageously, Mr. Kortlander maintained he was innocent and refused to agree to any deal.  Incredibly, days later, in August 2009, the Assistant U.S. Attorney wrote that the federal government will “not be seeking prosecution in this case.”

In the same letter, the federal government said it was “reviewing” the items seized by the BLM agents to determine “whether they can be legally possessed by [Mr. Kortlander and the museum].”  Over time, all but twenty items—those with bald and golden eagle feathers—were returned.  The retained items, claims the federal government, were contraband per se because the possession of items containing such feathers is illegal under federal law and neither Mr. Kortlander nor the museum had the requisite federal permit.  Not so argued Mr. Kortlander and the museum, the feathers contained in the artifacts pre-date the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

No matter, the United States refuses to return the artifacts.  It asserts that, because Mr. Kortlander has no documentary evidence proving from whom or when he acquired the items—despite his compliance with federal law as to how long he must keep such records—it need not return them.  Moreover, the United States maintains that it is not its obligation to prove the artifacts are illegally in the museum’s possession, but—relying in part on an affidavit from a convicted felon—the duty of Mr. Kortlander and the museum to prove their rightful ownership.  Might, argues the federal government in federal court in Montana, makes right.

Addendum: AFR previously covered the Kortlander story here.

 By John W. Whitehead March 26, 2013

“This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting.”—Public Defender John Rekowski

Long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting. To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights. You’re nothing more than a serf or a slave.

The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty, or property, without due process of law. Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.

The latest governmental scheme to deprive Americans of their liberties—namely, the right to property—is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure.

For example, the federal government recently attempted to confiscate Russell Caswell’s family-owned Tewksbury, Massachusetts, motel, insisting that because a small percentage of the motel’s guests had been arrested for drug crimes—15 out of 200,000 visitors in a 14-year span—the motel was a dangerous property. As Reason reports:

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate. One couple in Anaheim, Calif., is presently battling to retain ownership of their $1.5 million office building after the U.S. Drug Enforcement Administration filed an asset-forfeiture lawsuit against them because one of their tenants allegedly sold $37 in medical marijuana to an undercover agent.

Some states are actually considering expanding the use of asset forfeiture laws to include petty misdemeanors. This would mean that property could be seized in cases of minor crimes such as harassment, possession of small amounts of marijuana, and trespassing in a public park after dark.

As the Institute for Justice points out:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.  Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head.  With civil forfeiture, your property is guilty until you prove it innocent.

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the War on Drugs. By asserting that someone’s personal property, a building or a large of amount of cash for example, is tied to an illegal activity, the government—usually, the police—then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was obtained legally.

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits. For example, under a federal equitable sharing program, police turn cases over to federal agents who process seizures and then return 80% of the proceeds to the police.

Asset forfeitures can certainly be lucrative for cash-strapped agencies and states. In the fiscal year ending September 2012, the federal government seized $4.2 billion in assets, a dramatic increase from the $1.7 billion seized the year before. Between 2004 and 2008, police in Jim Wells County, Texas seized over $1.5 million. The Metropolitan Police Department in Washington, D.C. collected $358,000 from civil forfeiture in fiscal year 2011, and $529,000 from federal equitable sharing. The State Attorney’s Office in Madison County, Illinois, made $500,000 from asset forfeiture over the course of eight years.

Often, these governmental property grabs take the form of highway robbery (literally), where police officers extract money, jewelry, and other property from unsuspecting motorists during routine traffic stops. As Mother Jones quips, “forfeiture corridors are the new speed traps.” Indeed, states such as Texas, Tennessee, and Indiana are among the worst offenders. Mother Jones continues:

You all know what a speed trap is, right? If you have a highway running through your small town, you can make a lot of money by ticketing out-of-state drivers who are going one or two miles per hour over the speed limit. How many victims are going to waste time trying to fight it, after all? But have you heard about “forfeiture corridors”? That’s a little different — and quite a bit more lucrative. All you have to do is pull over an out-of-state driver for supposedly making an unsafe lane change, have your police dog sniff around for a bit of marijuana residue, and then use civil asset forfeiture laws to impound any cash you might find. Apparently it’s especially popular on highways leading into and out of casino towns.

In typical fashion, these police traps tend to prey on minorities and the poor, as well as undocumented immigrants and individuals who happen to have large amounts of cash on hand, even for lawful reasons. One such person is Jerome Chennault, who fell prey to Madison County, Illinois’ forfeiture corridor in September 2010. En route to Nevada after a visit with his son, Chennault was pulled over by police for allegedly following another car too closely. When police asked to sweep Chennault’s car with a drug dog, Chennault obliged, believing that he had done nothing wrong and had nothing to hide and completely unaware that he had fallen into a forfeiture trap.

During the search, the drug dog alerted on a black bag in the back seat of the car which contained about $22,000 in cash. The money, Chennault explained, was intended for a down payment on a home.  The dog did not find any drugs in the car, nor was there any evidence of criminal activity. However, instead of letting Chennault go on his way with a traffic citation, the police confiscated the cash, claiming that since the drug dog alerted to it, it must have been used in the commission of a drug crime. Chennault challenged the seizure in court, after months spent traveling to and from Illinois on his own dime, and eventually succeeded in having his money returned, although the state refused to compensate him for his legal and travel expenses.

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing. Between 2006 and 2008, for instance, Tenaha police seized roughly $3 million.

As Roderick Daniels discovered, it doesn’t take much to get pulled over in a forfeiture corridor like Tenaha’s. Daniels was stopped in October 2007 for allegedly traveling 37 mph in a 35 mph zone. He was ordered to hand over his jewelry and the $8,500 in cash he had with him to purchase a new car. When he resisted, he was taken to jail, threatened with money-laundering charges and “persuaded” to sign a waiver forfeiting his property in order to avoid the charges.

In an even more egregious case, Jennifer Boatright and Ron Henderson, an interracial couple travelling through Tenaha, were forced to forfeit the $6,000 cash they had with them to buy another car when police threatened to turn their young children over to Child Protective Services. Another traveler, Maryland resident Amanee Busbee, was also threatened with losing her child to CPS after police stopped her, her fiancé and his business partner when they were en route to Houston with $50,000 to complete the purchase of a restaurant. Boatright and Busbee were eventually able to reclaim their money after mounting legal challenges.

Comparing police forfeiture operations to criminal shakedowns, journalist Radley Balko paints a picture of a government so corrupt as to render the Constitution null and void:

Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.

In an age in which the actions of the police—militarized extensions of the government—are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors.

Always nice to see approving cites of Boyd v. United States (1886) and Entick v. Carrington (1765).

It continues to be disturbing that the Justices seem blindly accepting of unsupported assertions about trained drug-dogs.

More thoughts later.

Utah’s HB0384 would, among other things, limit cost-shifting awards to 20% of the value of the property:
769          Section 21. Section 24-4-110 is enacted to read:
770          24-4-110. Attorney fees and costs.
771          (1) In any forfeiture proceeding under this chapter, the court may award a prevailing

772      party reasonable:
773          (a) legal costs; and
774          (b) attorney fees.
775          (2) The legal costs and attorney fees awarded by the court to the prevailing party may
776      not exceed 20% of the value of the property.
777          (3) A party that prevails only in part is entitled to recover reasonable legal costs and
778      attorney fees only on those issues on which the party prevailed.

That effectively removes the incentive for forfeiture attorneys to provide counsel for fee-shifting awards alone unless the value of the property is immense–which predicts an escalation in uncontested forfeiture actions and in claims rejected for failing to adhere to procedural mandates.

Moreover, it should be stressed that such awards can only occur where the government takes someone’s stuff and the claimant substantially prevails. That is, where the government could not establish, even under laws favoring the government, that the government should be entitled to acquire the property. In such an environment, it simply makes no sense to limit recovery of costs.

Generally, present law provides for forfeiture of assets in connection with criminal activity or other violations of law. This bill states that the rights of any owner or owners of property provided for in this bill will supersede and override all Tennessee procedures, statutes and regulations governing forfeiture of property to the state or any county or municipality, whether the property is real, personal, or in other form. This bill further states that to the extent any statute, regulation or procedure is in conflict with this bill, the conflicting provisions will be null and void.

This bill provides that no seizure of any property may be executed without first obtaining a seizure warrant issued by a magistrate who is popularly elected within the county where the seizure is to be executed. If the seizure warrant identifies locations in more than one county, then the magistrate issuing the warrant must preside in a court in one of those counties. Any officer with the statutory authority to arrest an offender will have the authority to request the issuance of a seizure warrant. Upon issuance of a seizure warrant, only the sheriff of the county in which the seizure is to be executed will have the power to seize any property, real or personal.

If a forfeiture warrant is issued, upon execution of the forfeiture warrant, all real property seized will be either sequestered and guarded against damage from third parties, or released to the owner or occupant for use and caretaking until the disposal of the property is resolved by the court. Any person entrusted to such use pending the hearing will be responsible for any loss due to damage caused intentionally or by neglect, or removal of contents subject to the seizure. All personal property seized will remain upon the real property where it was located according to the warrant. If the real property is also being seized, the personal property will be removed to a secure location under the supervision of the jurisdiction wherein the magistrate presides.

The owner or persons in possession of the property at the time of the seizure must receive full documentation of the warrant and a receipt particularly describing the property seized and its condition. The seizing officer will bear custodial liability for the safekeeping of the property throughout its possession until disposition by the court. The owner of the property, lessor thereof, or agents of either will have access to the property sufficient to assure the safety and security of the property at all stages of the holding of that property prior to the disposition ordered by the court.

The person or entity claiming ownership of the property that has been seized will have the right to an expedited recovery hearing upon a showing of potential loss of value if such expedited resolution is not accomplished. No forfeiture will be final nor will title or other indicia of ownership pass to the state or jurisdiction seeking forfeiture until:

(1) The owner of the property in question is prosecuted and convicted of the criminal acts which render the property subject contraband; or
(2) The property is deemed contraband on account of its nature by a court of jurisdiction, the magistrate of which is an elected office, after a hearing wherein any persons opposing any finding of contraband shall have due process to present a case why it is not.

Any property damage, spoilage, or loss of any criterion of value during the pre-hearing possession of the jurisdiction will be grounds for recovery of that damage by the owner or user, from the jurisdiction making the seizure, if the hearing finds in favor of the opponent of the seizure. Such recovery may be ordered by the court wherein the seizure hearing is held, or in a separate suit by the owner or other interested party after return of the property.

Phil Williams from NewsChannel 5 in Nashville reports:

Tennessee lawmakers are prepared to consider a major overhaul of laws that allow police to take cash off of drivers to fund their agencies.

One lawmaker said this may be the year for some serious reforms.

It all stems from NewsChannel 5′s two-year “Policing For Profit” investigation.

Rep. Barrett Rich’s bill, as drafted, would completely outlaw the practice known as civil asset forfeiture. That practice allows police to take people’s cash or property without charging them with a crime.

While Rich didn’t believe he had the votes to go that far, he said that there is an emerging consensus over other reforms to protect the innocent.

“Since I’ve put the bill in, I’ve had member after member after member wish to cosponsor the bill,” he told  NewsChannel 5 Investigates .

Rich comes to the issue from the experience of having served as a Tennessee state trooper. The West Tennessee Republican himself did some interstate interdiction.

That’s the kind of enforcement activity that — for some agencies — has become more about making money than stopping drugs.

“When we went back and we watched NewsChannel 5 and we saw some of the issues that people have faced with civil forfeiture, the one thing that we see is that they are not actually given the opportunity to be heard by a real judge immediately,” Rich said.  Phil Williams, Lawmakers Set to Debate ‘Policing For Profit’ Reforms, NewsChannel 5, 14 Mar. 2013.

Other prime co-sponsors who are supporting this legislation are: Tony Shipley,  rep.tony.shipley@capitol.tn.gov , (615) 741-2886, Karen Camper,  rep.karen.camper@capitol.tn.gov , (615) 741-1898Jeremy Faison,  rep.jeremy.faison@capitol.tn.gov , (615) 741-6871G.A. Hardaway,  rep.ga.hardaway@capitol.tn.gov , (615) 741-5625William Lamberth,  rep.william.lamberth@capitol.tn.gov , (615) 741-1980Micah Van Huss,  rep.james.vanhuss@capitol.tn.gov , (615) 741-1717Eric Watson,  rep.eric.watson@capitol.tn.gov , (615) 741-7799. Rep. Vance Dennis, R-Savannah, has also been working on similar legislation.

The Court also granted review on whether an individual faced with the forfeiture of property that may be the proceeds of a crime has a right to a pre-trial hearing to challenge the basis for possible forfeiture.  The Justice Department agreed that the Court should address this issue because of a division among lower courts on it; the case is Kaley v. U.S. (12-464). Lyle Denniston, Court grants three cases, SCOTUSblog, 18 Mar. 2013.

IJ’s Press Release:

Arlington, Va.—Putting to rest the most contentious civil forfeiture fight in the nation, the U.S. Attorney’s office in Boston today announced it will not appeal a federal court’s decision that dismissed the civil forfeiture action filed against the Motel Caswell, a family-run motel in Tewksbury, Mass.  In January, Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded that the motel was not subject to forfeiture under federal law and that its owners were wholly innocent of any wrongdoing.

Download the federal court ruling (pdf).

“The Caswell family has been put through the wringer by the federal government for over three years, and we are thrilled that this law-abiding family is now finally safe from civil forfeiture,” said Scott Bullock, senior attorney at the Institute for Justice. “The Caswells stood to lose everything for which they had worked so hard. This case epitomizes everything that is wrong with civil forfeiture laws and why they are in such desperate need of reform. We will build off of this victory in future cases to once and for all end civil forfeiture and the inevitable abuses that surround it.”

The government had sought to take the Motel Caswell from the Caswell family under the theory that the motel allegedly facilitated drug crimes. But, in her opinion, Judge Dein found that Mr. Caswell “did not know the guests involved in the drug crimes, did not know of their anticipated criminal behavior at the time they registered as guests, and did not know of the drug crimes while they were occurring.”

In her opinion, the court also lambasted the federal government’s case as “not supported by a scintilla of evidence” and accused the government of engaging in “gross exaggeration.”

“The district court decision will stand as important precedent for the protection of property rights and rights of innocent owners swept up in the civil forfeiture system,” said Larry Salzman, an IJ attorney. “What the government tried to do in this case amounted to little more than a grab for what they saw as quick cash under the guise of civil forfeiture.”

Russ Caswell said, “We have been living with this legal nightmare for almost four years, and I can’t express how happy we are that this is finally behind us. But my fight against civil forfeiture is not over. I will continue to speak out against this unbelievable power. I will work to see that no other American has to go through what our family did.”

The problem of civil forfeiture is widespread. In 1986, the year after the U.S. Department of Justice’s Asset Forfeiture Fund was created—the fund that holds the forfeiture proceeds from properties forfeited under federal law and available to be paid out to law enforcement agencies—it took in just $93.7 million. Today, it holds more than $1.6 billion. An Institute for Justice report, Inequitable Justice: How Federal “Equitable Sharing” Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain, documents how the problem is growing worse. Between 2000 and 2008, equitable sharing payments from the U.S. Department of Justice to state and local law enforcement doubled from about $200 million to $400 million per year.

The Institute for Justice and local counsel Schlossberg, LLC, took on the Caswell case to expose the injustice of civil forfeiture laws that allow law enforcement agencies to pad their budgets by taking property from innocent owners who have never been convicted or even charged with a crime. The fight against civil forfeiture by IJ will continue through other litigation, legislation, activism, media outreach and strategic research.

“Civil forfeiture is a draconian power that is too easily abused,” said Darpana Sheth, an IJ attorney. “This case should serve as a cautionary tale of what can happen when an aggressive U.S. attorney wielding these laws goes after a small property owner like Russ Caswell.”

IJ President and General Counsel Chip Mellor said, “The Institute for Justice has documented time and again that civil forfeiture invites a lack of accountability, a lack of due process and a lack of restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict that person of a crime. Short of that, you will keep ending up with what the federal government tried to do to the Caswells.” John E. Kramer, Federal Government Won’t Appeal Massachusetts Civil Forfeiture Case: Victory is Final for Motel Caswell and IJ, Institute for Justice, 15 Mar. 2013.

Catherine E. McCaw, Asset Forfeiture as a Form of Punishment: A Case for Integrating Asset Forfeiture into Criminal Sentencing, 38 American Journal of Criminal Law 181 (2011)

I. The Law of Asset Forfeiture
The laws that govern asset forfeiture are extremely complicated. The statutes do not straightforwardly describe which crimes give rise to forfeiture, nor which types of assets. There are also three different types of asset forfeiture, each with its own procedural requirements. First, the government may confiscate assets administratively without resort to court procedures if a property owner does not contest a forfeiture. If a property owner does contest the forfeiture, the government may pursue the forfeiture through two separate judicial channels: (1) criminal forfeiture and (2) civil forfeiture. This section explains both the substantive and the procedural law of asset forfeiture.

A. Substantive Forfeiture Law

In order to gain title to an asset through asset forfeiture, the government must fulfill two substantive requirements. ⁿ⁴¹ First, the government must demonstrate that the property to be forfeited has the requisite relationship to criminal activity.  Second, the government must show that the law allows it to obtain property when the property bears that relationship to a particular crime.  

The government may demonstrate that property has the requisite relationship to criminal activity under three theories. First, the government may argue that the property constitutes the proceeds of a crime.   In general, the government proves that property constitutes criminal proceeds through the use of circumstantial evidence. The government most frequently argues that a defendant has assets and had no legitimate income with which to purchase those assets. The government might also argue that large sums of cash seized from individuals who seem to be drug couriers constitute criminal proceeds, pointing, for example, to the fact that the money was stored with fabric softener sheets to conceal the money from drug dogs, that the money was transported from a drug capital, or that it was stored in a hidden compartment in a vehicle.  

The second theory the government may advance is that the property was an “instrumentality” of a crime, meaning that someone used the property while committing the crime.   Third, the government may argue that the property “facilitated” a crime, meaning that the property enabled the crime in a broader sense.  For example, in United States v. Smith, a farmer was growing marijuana on his property. He was required to forfeit not only the land on which he actually grew marijuana, but also surrounding tracts of land that facilitated his commission of the crime by concealing his marijuana growing operation from public view.  The government must demonstrate that there is a “substantial connection between the property and the offense” if the government is arguing the property facilitated a crime.  

Determining the second step in the analysis, that a crime can give rise to forfeiture, is a surprisingly difficult task. Congress initially enacted piecemeal statutes that authorized asset forfeiture for specific offenses.  For example, 21 U.S.C. § 853(a)(1) authorizes the criminal forfeiture of drug proceeds, whereas 21 U.S.C. § 881(a)(6) authorizes their civil forfeiture. In 2000, Congress enacted the Civil Asset Forfeiture Reform Act (CAFRA).  One of its provisions authorizes forfeiture of proceeds for a lengthy list of crimes, including mail and wire fraud, which had not previously given rise to asset forfeiture.  Other statutes also authorize forfeiture of instrumentalities or facilitating property.  Prior to CAFRA, certain types of crimes could give rise to civil forfeiture but not criminal forfeiture. CAFRA ended this confusion by authorizing criminal forfeiture wherever civil forfeiture was authorized.  

After the government demonstrates that property is subject to forfeiture, it must demonstrate that the forfeiture of this property does not constitute an excessive fine.  The Supreme Court has held that an Eighth Amendment excessive fines analysis is constitutionally necessary for all criminal forfeitures and for civil forfeitures that are not predicated upon the guilt of the property, such as when the because the property was the instrumentality of a crime.  CAFRA expanded this rule by requiring an excessive fines analysis for all civil forfeitures.  Most courts have held that forfeiture of criminal proceeds can never be excessive.  For example, in United States v. Betancourt, a defendant used criminal proceeds to  [*188] purchase a lottery ticket and ended up winning $ 5 million.  The Fifth Circuit held that the defendant must forfeit all of his lottery winnings because they were the proceeds of a drug transaction, even though the statutory maximum fine was only $ 152,000.  

Courts usually conduct a more extensive excessive fines analysis when the property is forfeited as facilitating property or an instrumentality. Most circuits determine excessiveness by comparing the value of the property to the statutory maximum fine for the underlying crime.  This test can end up being relatively harsh. For example, in von Hofe v. United States, the government attempted to divest both a husband and a wife of their interest in their home because the husband was growing marijuana in the basement. When the police searched their home, they found sixty-five marijuana plants in the basement but no evidence that anyone was participating in the drug trade (such as small plastic bags for packaging drugs, large amounts of cash, or firearms).  The husband stated that he had been growing marijuana in his basement for about a year.  During that time, he had bartered some of the marijuana for landscaping and roofing services and shared it with his neighbors.  

The government conceded that the husband’s activity did not “rise to the level of a major marijuana cultivation operation” and characterized the harm the husband had caused as “perhaps difficult to quantify in objective terms.”  The Second Circuit nonetheless noted that federal law authorized a fine of up to $ 1 million and went on to hold that the forfeiture of the husband’s interest in the house was not disproportionate.  But the court declined to hold that the government could constitutionally obtain the wife’s interest.  It noted that her “offensive conduct boils down to her joint ownership of [her marital home] and silence in the face of her husband’s decision to grow marijuana in their basement almost thirty years into their marriage.”  It reasoned that it was unfair to punish the wife as if she had been personally involved in growing marijuana and held the  [*189]  forfeiture to be constitutionally excessive.  Thus, the Eighth Amendment provides some check to asset forfeiture, but its protections can be meager.

B. Asset Forfeiture Procedure

Once the government decides to seize an asset, it must decide between several procedures at its disposal to carry out the forfeiture. There are two broad categories of forfeitures: administrative and judicial. Administrative forfeitures proceed without any involvement of the courts. Judicial forfeitures encompass two categories: civil and criminal forfeitures. These forms of forfeiture all have different procedural requirements and different benefits and drawbacks for the government.

1. Administrative Forfeitures

When the government uses administrative forfeiture, it obtains title to the property without any intervention from the courts through a procedure that resembles a default judgment.  Law enforcement agencies like the FBI and DEA pursue forfeiture against property on their own, without the assistance of the DOJ.  An agency seizes property and then sends a notice of intention to forfeit to parties that might have some claim to the property.  The government generally must provide notice within sixty days of seizing the property.  If no one challenges the forfeiture within thirty days, title to the property transfers to the government.  If a party does contest the forfeiture, the government must pursue the forfeiture action in court rather than relying on administrative forfeiture.  Once property is forfeited administratively, the owner may challenge the forfeiture in court only on procedural grounds.  In other words, a party may argue that she did not receive proper notice but may not argue that she was an innocent owner.  

The government may rely upon administrative forfeiture in most, but not all, cases. The government may use administrative forfeiture if the property is valued at less than $ 500,000, if the property may not be legally imported into the United States, if the property was used to transport a controlled substance, or if the property is a monetary instrument.  Even if the property falls into one of the above categories, the government may not use administrative forfeiture to gain title to real property.  

Approximately 80% of forfeiture actions are uncontested.  It is unclear why this number is so high, but it is clear why the government prefers administrative forfeitures. The Department of Justice advises agencies to pursue administrative forfeiture whenever possible because of the increased “speed and efficiency” of administrative forfeitures.  In some cases, parties may not contest forfeitures because doing so would tie them to illegal activity.  Others may calculate that the expense of contesting the forfeiture exceeds the value of the property. Still, these explanations are speculative, and the amount of information available about administrative forfeiture is limited.  

2. Judicial Forfeitures

If a party contests the government’s administrative forfeiture, the forfeiture must proceed before a judge. Once a forfeiture becomes a judicial forfeiture, litigating attorneys from the DOJ take over.  If someone files a claim against property that the government attempted to obtain through administrative forfeiture, government attorneys must commence a judicial forfeiture within ninety days or return the property to the claimant.  

There are two types of judicial forfeitures: civil forfeitures and criminal forfeitures. Civil forfeitures proceed against the property itself and  [*191]  do not require an underlying criminal conviction.  Criminal forfeitures proceed against a particular criminal defendant and are considered part of that defendant’s punishment.  In many cases, attorneys will file both civil and criminal forfeitures against the same property simultaneously.  

3. Civil Forfeitures

In civil forfeiture actions, the government proceeds in rem against the property to be forfeited, claiming that the property is subject to forfeiture because it has been tainted by its connection with criminal activity.  In the parlance of civil forfeiture, the property itself is guilty. Those who claim that they have an interest in the property may intervene to prevent the forfeiture from going forward.  The Supreme Court has held that civil forfeiture is not a punitive action for the purposes of Double Jeopardy, so the government is free to file a civil forfeiture action even after the property’s owner is prosecuted criminally.  The Seventh Amendment entitles claimants to a jury trial in forfeiture proceedings.  

If the forfeiture goes to trial, it proceeds in two stages. First, the government must prove by a preponderance of the evidence that the property is subject to forfeiture.  In doing so, it must demonstrate that the property on trial – and not merely the owner – has a connection to criminal activity.  In the case of physical items, that process is relatively straightforward. The process can be more complicated for fungible assets such as money. As an illustration, imagine the government wants to demonstrate that $ 100,000 were the proceeds of a drug transaction. In the same bank account, a drug dealer has $ 100,000 that were the proceeds of a drug transaction and another $ 100,000 that the drug dealer earned legitimately. The drug dealer then spends $ 50,000. Civil forfeiture law allows the government to seize the $ 100,000 involved in drug transactions, but not the innocent $ 100,000. Tracing which dollars are tainted can be difficult. Congress has made the task of determining which assets are tainted by crime somewhat easier in the case of fungible assets. If the  [*192]  government commences a forfeiture action within a year of the offense,  the government need not show that the specific fungible assets were tainted.  Instead, “any identical property found in the same place or account as the property involved in the offense that is the basis for the forfeiture shall be subject to forfeiture … .”  

After the government establishes that the property is subject to forfeiture, claimants may contest by asserting an innocent owner defense.  Claimants may demonstrate innocent ownership in several ways. The claimants may show that they had no knowledge that the property was being used for illegal purposes.  The claimants may also show that they knew of the illegal activity, but “did all that reasonably could be expected under the circumstances to terminate such use of the property.”  The statute provides an example of “all that reasonably could be expected”: an owner must both notify law enforcement and attempt to get the perpetrator to stop using the property for illegal purposes.  

Claimants to property may also demonstrate innocent ownership by demonstrating that they were bona fide purchasers for value  who, at the time of purchase, “did not know and was reasonably without cause to believe that the property was subject to forfeiture.”  An attorney who is paid with tainted assets is likely to have difficulty satisfying this standard.  The statute creates a very limited “innocent owner” defense for claimants who received their property as part of a divorce settlement or inheritance. These claimants must satisfy four conditions to assert the defense: the property must be a primary residence; deprivation of the property must render the claimant homeless; the property must not have been purchased with the proceeds of a criminal transaction; and the claimant must, in fact, be an “innocent owner” – that is, the claimant must not have known and could not have known of the property’s involvement in crime at the time of acquisition.  After the government establishes that property is subject to forfeiture, the burden shifts to the claimants if they wish to assert an “innocent owner” defense.  

4. Criminal Forfeitures

Criminal forfeiture does not proceed against the property itself, but rather proceeds against a specific criminal defendant and is considered a part of that defendant’s criminal punishment. The government begins criminal forfeiture proceedings by including forfeiture allegations in a criminal indictment.  The government must then demonstrate either at trial or through a guilty plea that the defendant is guilty of a crime. Defendants are not subject to criminal forfeiture unless they have been convicted of a crime.  

If a defendant opts for a trial, the trial may have two separate phases: a guilt phase and a forfeiture phase to determine whether there is “the requisite nexus between the property and the offense committed by the defendant.”  Still, in most instances both parties waive their right to a jury trial for the forfeiture phase and instead allow the judge to determine forfeitability.  Although the government must establish a defendant’s guilt beyond a reasonable doubt, the government need demonstrate only by a preponderance of the evidence that the property is subject to forfeiture.  

Because criminal forfeiture depends on the criminal defendant’s wrongdoing rather than the property’s taint, the government does not need to establish as strong a tie between the crime and the property as it does in civil forfeiture proceedings. Criminal forfeiture requires a defendant to forfeit the proceeds of a criminal transaction and property that facilitated a criminal transaction.  The government may also require a defendant to satisfy a forfeiture judgment by forfeiting substitute assets.  If, for example, the government can prove that a defendant earned $ 100,000 in drug proceeds, but it cannot locate those specific drug proceeds, it may seize other property worth up to $ 100,000.  If the government cannot identify substitute assets at the time of trial, it may identify them later as they become known to the government.  In other words, criminal forfeiture functions much like a judgment for damages. In contrast, the government must prove that the particular property to be forfeited is tainted by crime in a civil forfeiture proceeding.

Criminal proceedings are focused on the guilt of the criminal defendant and do not consider the claims that third parties might have to the property. After the government establishes that the defendant must forfeit the property, third parties may petition the court to hold an ancillary proceeding where the court considers whether the third party has a right to the property. Third parties may defeat forfeiture by establishing one of two things. First, they may establish that they were the legal owner of the property when the defendant committed the crime that rendered the property subject to forfeiture.  In other words, if a drug dealer borrows a friend’s car to transport drugs, the government may not confiscate the car through a criminal forfeiture proceeding. It might, however, be able to confiscate the car through civil forfeiture because civil forfeiture depends on the guilt of the property rather than the guilt of the party. Second, they may establish that they were bona fide purchasers for value after the property became subject to forfeiture and were “reasonably without cause to believe that the property was subject to forfeiture … .”  

This rule has important consequences for defense attorneys. Under the statute, “all right, title, and interest in property … vests in the United States upon the commission of the act giving rise to forfeiture … .”  As a consequence, the defendant may not pass legitimate title to the property to other parties.  The statute does not create an exception for attorney’s fees.  The fact that defendants may not pay for their attorneys with assets that are subject to forfeiture may make it more difficult for a defendant to afford an attorney. But the Supreme Court has held that this potential difficulty does not violate the Sixth Amendment.  The Court reasoned that “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice.”  The Court also observed that Congress crafted asset forfeiture statutes in part to deprive criminal organizations of their economic influence.   One manifestation of criminal organizations’ economic influence is their ability  [*195]  to pay for high quality legal representation.  As long as the defendant may still obtain a public defender, the Sixth Amendment is satisfied.

Even though criminal forfeiture is technically a part of a defendant’s sentence, the fact that a defendant has forfeited property does not generally affect his or her prison sentence. Courts do not grant defendants a downward departure from the sentencing guidelines because they have had property forfeited.  In addition, the courts do not have the discretion to adjust the amount of a forfeiture to take into account the length of a defendant’s prison sentence.  

Criminal forfeiture does not affect the size of the fine that a criminal defendant must pay. Such fines are determined in accordance with the sentencing guidelines, and it follows that if defendants cannot receive lower sentences in exchange for hefty forfeitures, then defendants may also not pay their fines with assets that they have forfeited. Under the relation back doctrine, title to the forfeited property transfers to the government as soon as the property becomes tainted by its involvement in criminal activity.  At the time the defendant is paying a fine, the property belongs to the government rather than the defendant.

5. Civil vs. Criminal Forfeitures

Civil forfeiture and criminal forfeiture are not exclusive remedies.  The government may file separate actions against the same piece of property under both theories.  If the government loses in one of its actions, it is not precluded from trying to gain title to the property under the other theory.  

Both types of forfeiture have advantages and disadvantages. Criminal forfeiture can be more efficient because it enables the government to dispose of the asset forfeiture and the criminal conviction in a single proceeding. The government may obtain what is essentially a money judgment against a criminal defendant if it proceeds through criminal forfeiture. In addition, criminal forfeiture can seem more legitimate because the government is not punishing crime through a civil remedy. The main disadvantage of criminal forfeiture for the government is that it must  [*196]  obtain a criminal conviction before it can obtain assets through criminal forfeiture. In addition, if a defendant chooses to go to trial, the government could have to try two cases: the guilt case and the asset forfeiture case.

The main advantage of civil forfeiture is that it does not require an underlying federal criminal conviction. This fact may strike some as sinister, but it also allows the government to pursue lesser punishments as the equities may demand. The government may pursue civil forfeiture as an alternative to criminal punishment when it judges that criminal punishment would be too harsh. For example, the government might confiscate a crack house in order to abate a nuisance even though it might not be fair to prosecute the owner for a crime. Similarly, if a juvenile were using his cell phone to disseminate naked pictures of an under-aged classmate, a prosecutor might choose to punish him by requiring him to forfeit his cell phone as the instrumentality of a crime rather than saddling him with a charge of distributing child pornography.

The government might pursue civil forfeiture to deprive the owner of property when the case against the owner is too weak to sustain a criminal conviction. If the government is depriving someone of property to which she has no legal right, this procedure might not be so bad. For example, the government can use asset forfeiture to return stolen archeological artifacts to museums.  Surely, the ability of the government to seize and return these artifacts should not turn on whether the government can make out a criminal case against the thief. The federal government also uses civil forfeiture against defendants who have been convicted in state court. The federal government cannot use criminal forfeiture in these so-called adoptive forfeitures because federal criminal forfeiture requires a federal criminal conviction.  Of course, others might consider it unfair for the government to impose a sanction on someone for criminal behavior it has not proven beyond a reasonable doubt.

The disadvantage from the government’s perspective of civil forfeiture is that it must tie the property more directly to the criminal activity. It does not have the option of demonstrating that a defendant has received a certain amount of money in proceeds and seeking substitute assets to satisfy that award.

The doctrines surrounding asset forfeiture are complicated in part because asset forfeiture is designed to serve a variety of different purposes. It is meant to punish, to serve remedial purposes, and to raise money for the government. Given that the doctrine is meant to serve such disparate purposes, it is not surprising that the doctrine ended up being extremely complicated. If the asset forfeiture system is modified, it is important to respect the diverse goals that asset forfeiture aims to achieve.

 

Whatever the appellate panel determines could have far-reaching effects on

1. the willingness and ability of private attorneys to take implicated cases;
2. availability of certain kinds of fee arrangements;
3. market prices for implicated cases;
4. the willingness and ability of public interest groups to provide legal services in implicated cases;
5. quality of representation provided in implicated cases;
6. quality of representation available to indigent claimants in implicated cases; and
7. quality of representation available to claimants who would otherwise be able to afford counsel of their choosing but cannot draw upon their assets because the government has seized or frozen the claimants’ assets.

Claimants who substantially prevail in federal civil asset forfeiture cases and seek costs are generally eligible to receive awards of reasonable attorney fees and other litigation costs reasonably incurred by the claimant pursuant to the fee-shifting provision of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). (CAFRA’s fee-shifting provision is codified at 28 U.S.C. § 2465.) ^1 2

The dispute over what constitutes a proper award of attorney fees stems from the government’s unsuccessful attempt to forfeit $28,000.00 from claimant Robert J. Moser. In March of 2012, U.S. District Judge Larry Alan Burns issued a ruling granting claimant Moser’s motion to suppress evidence and granting Moser’s motion for Summary Judgment after finding purposeful and flagrant constitutional violations:

“…Moser’s consent in this case followed closely on the heels of serial constitutional violations including ignoring the requirement to advise him of Miranda rights before questioning him about the marijuana and illegally entering and reentering Moser’s home without a search warrant.

The Court also finds the constitutional violations that preceded Moser’s consent were purposeful and flagrant. There is no suggestion here that either Deputy Bloomberg or Officer Reed believed that they were acting under the authority of a search warrant when they entered Moser’s home. And even if they were uninformed or confused about the existence of a search warrant, the federal agents were present during both of their searches (even accompanying Deputy Bloomberg on the first occasion) and did not inform their state counterparts that no search warrant had been obtained. Moser’s earlier limited consent to enter the home for the purpose of escorting him to retrieve his medication did not authorize the subsequent entries to search for marijuana and evidence of other crimes.

There is really nothing, then, to purge or attenuate the taint of the initial illegal searches of Moser’s home. Moser’s consent to search was tainted by those initial constitutional violations. The Court concludes that the $28,000 must therefore be suppressed.” United States of America v. $28,000.00 in United States Currency, Order Granting Defendant-Claimant’s Motions to Suppress and for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, and Denying Plaintiff’s Motion to Strike the Claim as Moot, 2012 U.S. Dist. (S.D. Cal. March 29, 2012).

On February 11th, 2013, United States District Judge Larry Alan Burns issued another order granting an award of $14,000.00 of the $50,775.00 in attorney fees sought by Claimant Moser and his attorney Richard M. Barnett.³ The latter order is as problematic as the former was commendable. Judge Burns’ opinion first reduced Barnett’s requested-for-fee from $500.00/hour to $300.00/hour and then accepted only 60 hours of Barnett’s reported 100+ work hours, reasoning that “Barnett gave the government’s litigation work more respect than it deserved.” After arriving at a lodestar⁴ figure of $18,000.00⁵, Judge Burns proceeded to downgrade the $18,000.00, in part, because Barnett was willing to take the case on a contingency basis set at 1/3 of the $28,000.00 and because, in Judge Burns’ apparent reasoning, Barnett would have been aware that CAFRA fee-shifting awards are rare and not intended to produce a bounty for attorneys. Judge Burns then made a small allowance for risk and arrived at the $14,000.00 sum:

“The remaining relevant factors are the customary fee, whether the fee is fixed or contingent, the amount involved, and the “undesirability” of the case. These all boil down to a limited set of facts, namely that Barnett knew Moser could not recover more than $28,000, and he agreed in a contingent fee agreement to accept 1/3 of the total recovery as his fee.

Civil forfeiture cases involve a variety of types of property and a wide range of property values. Within this range, a claim for $28,000 is not as lucrative as some, but a contingency fee agreement would be enough to attract competent counsel. See Blanchard, 489 U.S. at 92 n.6 . It is not such an undesirable case that a higher fee award is merited in order to encourage attorneys to undertake the representation. The Court finds very significant the fact that Barnett was willing to undertake the representation for no more than $9,333.33 plus costs. He might have expected it to settle quickly, based on the strength of Moser’s suppression argument. But there was no assurance of that. He might also have hoped for an award of fees under CAFRA. But he would have been aware that fee awards are not common, and also that they are not intended to produce a bounty for attorneys. See Blanchard, 489 U.S. at 92 n.6. The logical and reasonable inference here is that Barnett and Moser agreed to a fee of no more than about $9300.

It is also significant that this was a contingent fee agreement. The fraction of the recovery that goes to the attorney under such agreements typically compensates the attorney not only for work done in cases where his client prevails, but also covers the attorney’s losses in cases where the client recovers little or nothing. In other words, it is adjusted upwards to account for risk. The $9,333 figure can be presumed to be higher than what Barnett would charge if there were no risk, i.e., if Moser had guaranteed payment regardless of the outcome.

While the Court recognizes that this figure is not a cap on the award, it is nevertheless relevant. See $186,416.00 in U.S. Currency, 642 F.3d at 755 (court may consider fee agreement when determining reasonable fee award). Bearing in mind the relevant Johnson factors, the Court determines that a fee award of $18,000 is excessive, but an award of $14,000 is reasonable.” United States of America v. $28,000.00 in United States Currency, Order Granting In Part Motion For Attorney’s Fees, 2013 U.S. Dist. (S.D. Cal. February 11th, 2013).

What Judge Burns’ formulations seem to ignore is that CAFRA’s fee-shifting provisions were meant by Congress to induce private attorneys to take civil forfeiture cases. The intended appeal of the awards were never meant to be mere happenstance or afterthought. Rather, the cost-shifting provisions were intended as a solution. They were supposed to create and drive a market. They were supposed to address that asset forfeiture law is highly specialized, unlikely to be handled well by those lacking significant experience in asset forfeiture law, frequently expensive to litigate, and that innocent property owners were understood to be conceding cases or going bankrupt defending against federal forfeiture actions. Moreover, an assessment that “fee awards are not common” would demand an upward determination from lodestar to sufficiently induce the availability of attorneys willing to take cases looking for such awards.

Furthermore, treating CAFRA’s fee-shifting provision as mere afterthought ignores the power of the provision to persuade public interest groups to assume the costs of litigating gross injustices in civil asset forfeiture. The availability of compelling fee-shifting awards makes it feasible for public interest groups to take more cases and argue them with added vigor. It should be reiterated that the government only pays when claimants substantially prevail–that is, only in cases of genuine merit and precisely when we would most want attorneys or public interest groups to step in and offer to take cases for the lure of CAFRA’s fee-shifting awards.

Readers might consider encouraging groups invested in fighting civil asset forfeiture abuse to weigh filing friend of the court briefs.

Appellate opinion here.

A new bill under consideration in Hawaii’s state senate would expand asset forfeiture to include petty misdemeanors.  Under Hawaii state law, petty misdemeanors are usually punished by up to 30 days in jail and/or $1,000 in fines.  But if SB 1342 passes, petty misdemeanors would join murder and theft as offenses that are subject to property forfeiture.  It would also raise a ton of new legal questions: for disorderly conduct, could stereos and iPods be seized if someone’s music is too loud?  Could someone lose his car if he is caught speeding or driving under the influence?

In submitted testimony, the Hawaii chapter of the ACLU posits that applying asset forfeiture to petty misdemeanors like trespassing could lead to all sorts of ridiculously-cruel consequences.  Homeless people could lose their property if they camp out in a park after hours.  Protestors could have their signs, petitions and other assets seized—a chilling effect on the First Amendment.

The bill is backed by Hawaii’s Department of Land and Natural Resources as a way to protect “natural, cultural, historical and recreational resources.”  The Department also argues that fines and other penalties are “not a sufficient deterrent.”  But including asset forfeiture as a punishment is excessive.  Indeed, Hawaii County Prosecutor Mitch Roth has lambasted the bill as “draconian.”  Meanwhile, state Sen. Russell Ruderman called SB 1342 “outrageous,” telling Big Island Now that “we should have more safeguards, not less, to protect people from forfeiture abuses.”

Hawaii’s forfeiture regime is one of the worst in the nation, with law enforcement receiving 100% of the proceeds of forfeiture. In their 2010 “Policing for Profit” report, the Institute for Justice graded Hawaii’s forfeiture statute a “D”, noting that:

The state may forfeit your property by showing by a preponderance of the evidence that the property was used in a crime.  Unfortunately, if you are an innocent owner and believe your property was wrongly seized, you bear the burden of proof.  Law enforcement has a strong incentive to seize property, as they receive 100 percent of the funds raised through civil forfeiture.

 

• Any lingering financial incentive for police to record field data on drug-dogs is extinguished. Preserved evidence of false positives could be used by a claimant to argue against the reliability of a particular drug-dog. While the evidentiary weight of field data on false positives is greatly diminished by yesterday’s ruling, preserving such evidence nonetheless creates an unnecessary risk of diminishing opportunities for police departments to realize windfall profits stemming from seizures conducted incident to alleged drug-dog alerts. Specifically, it risks that judge or jury would nonetheless find troubling a particular drug-dog’s field record of purportedly alerting where no drugs are to be found. The easiest way to prevent the appearance of such records is to simply not record the data.
• Severing incentives to keep field records increases incentives for police to employ drug-dogs that are certified but give false positive alerts in the field.¹ Current asset forfeiture laws largely permit police to self-appropriate by acquiring substantial portions of the proceeds of property seizures if the property is ultimately forfeited.² The more drug-dogs alert, the more opportunities are available for big paydays.
• Given the absence of agreed-upon standards for the certification of a drug-dog (other than an award of certification) and the incentives for false positives, police have an increased incentive to acquire certification from companies that will certify drug-dogs who can find drugs but who also give false positives (or self-certify). The market will of course correct for this phenomenon. Moreover, scrutiny over drug-dogs who give a surfeit of false positives will be reduced.
• The ruling likely reduces meaningful access to the courts in civil forfeiture proceedings involving positive drug-dog alerts. The opinion seems to presume the existence of defense counsel who possess the capacity to present competent rebuttals. Unfortunately, claimants fighting civil asset forfeitures generally need to hire their own counsel or do it themselves. There are fee-shifting provisions awarding attorney fees to claimants who substantially prevail. However, it just became more difficult to win these cases–reducing the incentives for private attorneys to take the cases on the hopes of winning awards of attorney fees. It is also predictable that hiring an attorney for such a claim just got more expensive. That likely means a lot of folks trying to navigate the process as pro se claimants or, more likely, more people who simply accede to the state forfeiting their property because the police want the property and they say a dog alerted to it.
• It seems more likely that Florida v. Jardines became an implied consent/curtilage issue as Professor Orin Kerr suggested last June:

If the front porch and space next to Jardines’s door was curtilage, then, the question becomes whether Jardines had impliedly consented to the officers’ visit. And this raises a classic criminal law puzzle: How do you construe the scope of implied consent, and what level of generality do you choose? If you construe the scope of consent at a high level of generality, you could say that homeowners impliedly consent to visits. This was a visit, so there was implied consent to go up to the door and knock. (The officer who was not the dog trainer testified that he approached the house with the intent to knock and talk, but it’s pretty obvious that the officers’ primary goal was to have Franky do his thing.) On the other hand, if you construe the scope of consent at a specific level of generality, you could say that homeowners do not impliedly consent. No one in their right mind would consent to have drug-detection dogs sent to their home to sniff to see if there are drugs inside. So from the more specific level of generality, there is no consent. The officers could approach the home and knock on the door, but they could not bring the trained dog to sniff for narcotics.Orin Kerr, A Preliminary Thought on Florida v. Jardines, Volokh Conspiracy, 21 Jun. 2012.

In sum, Florida v. Harris looks like very bad news for anyone concerned with civil asset forfeiture reform and anyone worried about how these laws corrupt law enforcement and/or prey on the poor.

The Columbia City Council on Monday night heard the first reading of a police department request to spend $16,000 in asset forfeiture funds on new SWAT team headsets, despite a request from the Citizens Police Review Board to use the money to launch its mediation program.

Council members did not directly question last night whether asset forfeiture funds collected by the U.S. Department of Justice and U.S. Department of Treasury could be allocated to the review board, but a police department presentation made clear that such a transaction would not be permitted. Federal guidelines prohibit the use of the funding to supplement salaries for positions exceeding one year, as well as the use of funding by non-law-enforcement personnel.

The Department of Justice Equitable Sharing guidelines controlling the use of federal asset forfeiture funds by recipient state and local law enforcement agencies are contained in the DOJ publication “Guide to Equitable Sharing for State and Local Law Enforcement Agencies” (April 2009). They are not statutory law; they are policies set by the Attorney General. It is correct that the use of federal forfeiture money by the Citizens Police Review Board would be prohibited by these guidelines, but that begs a larger question: why does a federal agency presume to tell Columbian citizens how they can spend the money received by the Columbia Police Department? Do we not have the right to control our own city and local agencies?

The Tribune continues:

The police department receives asset forfeiture funds through its participation in federal cases that result in the seizure of money collected as evidence or used in the process of a crime, assistant city counselor Nicole Volkert said. A federal judge then decides whether the money can be reallocated to the Federal Asset Forfeiture Equitable Sharing Program.

Strictly speaking, this is not entirely true. Federal forfeiture laws allow the seizure of property on the suspicion that the property was involved in illegal activity. The federal government does not have to substantiate its allegations, provide proof, or even file charges in criminal court to seize and forfeit property. As our colleagues at the Institute for Justice noted in their 2010 “Policing for Profit” report:

Seized assets transferred to the federal government through equitable sharing agreements may be forfeited regardless of whether an individual is charged, let alone convicted, of a crime in either state or federal courts.  If the assets are successfully forfeited to the federal government, the funds are deposited in the appropriate federal asset forfeiture fund, and state and local agencies receive a percentage back.

It is also worth noting that federal judges do not decide whether the forfeiture can be disbursed to the Federal Asset Forfeiture Equitable Sharing Program; that decision is wholly the purview of the federal agency initiating the forfeiture. Additionally, it is not necessarily even a common occurrence that a judge is involved; most federal forfeitures begin and are resolved as administrative forfeitures, where there is no judicial supervision. Additionally, federal agencies and US Attorneys will often try to “trick” claimants into filing a claim for remission (where the agency is the arbiter deciding the merit of the claim) instead of filing a claim to contest the forfeiture in federal court.

In September 2012, the Department of Justice’s Office of Inspector General (OIG) released an audit of Drug Enforcement Administration (DEA) adoptive seizure process and equitable sharing requests. It is worth noting that:

Of instances involving federal adoption of assets seized, 65% of reported samples [41 of the 63 examined samples] required DEA headquarter approval to adopt the seizure because the instance lacked all of the following criteria:

1. the seizure was based on a federal or state judicial seizure warrant;

2. an arrest was made for a felony violation of the Controlled Substances Act or an equivalent state felony charge that would be a felony if pursued under federal law; and/or

3. drugs or other contraband associated with a federal felony drug offense were also confiscated at the time of seizure.

These statistics indicate that it is a lie that forfeiture proceeds represent the proceeds of crime. We argue that in forfeitures where there is no warrant, felony arrest, or contraband found that innocent people (ordinary Americans) are essentially being robbed blind by a powerful federal agency. And it’s not just the DEA. As we reported in August:

Attorney General Eric Holder has granted the Bureau of Alcohol, Tobacco, Firearms, and Explosives authority, for a one-year trial period, to seize and administratively forfeit property allegedly involved in controlled substance offenses pursuant to United States Code Title 21 › Chapter 13 › Subchapter I › Part E › § 881.

21 U.S.C. § 881 is, among other things, often invoked to seize and forfeit bulk currency, where no drugs are found, on theories that the currency was furnished, or intended to be furnished, in exchange for a controlled substance.

Do we want Columbia Police Department involved in this federal racket? Unfortunately, it appears Columbia Police Chief Ken Burton turns a blind eye to this reality:

Funding collected through the federal program increased last year because Columbia police assigned a detective to work with the DEA in Jefferson City, Burton said. The department collected $61,165 in 2010, $41,769 in 2011 and $121,964 in 2012.

After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources. Florida v. Harris, ___ U.S. ___ (2013).

For a more rational view, see Loyola of New Orleans Law Professor Leslie A. Shoebotham’s Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug‐Detection Dogs. [Full article available here at SSRN.] [Professor Shoebotham also authored the Fourth Amendment Scholars Amici Curiae briefs in Florida v. Jardines and Florida v. Harris.]

‎”On receiving his monthly bank statements, a small business owner notices that the United States government has seized the balances of his accounts during the month. He calls the bank, and is given contact information of a Special Agent of the Internal Revenue Service Criminal Investigation Division. The owner’s lawyer calls the agent and leaves a voicemail message. An Assistant United States Attorney calls the owner’s attorney back saying that the funds were seized because of “structuring.” The AUSA adds that the government does not intend to seize any more money from the business, or to prosecute the business owner. The owner had no advance notice of the seizure. He is supposed to accept this.

According to the U.S. Department of Justice, civil asset net forfeitures surged to $4.2 billion in the year ended September 30, 2012, from $1.7 billion in the preceding year—a one-year increase of over 150%.

18 United States Code § 5313, enacted in 1982 as part of the Bank Secrecy Act, requires banks to report to the U.S. Treasury transactions in money in excess of $10,000. The purpose of the requirement is to alert Treasury to possible drug trafficking and attendant tax evasion. People evade this requirement by arranging their bank transactions in amounts less than $10,000. For example, instead of depositing $90,000, a person may make ten separate deposits of $9,000 each.

Congress responded by enacting 18 USC §§ 5324 and 5317 in 1986. 18 USC § 5324 makes it a crime for any person to structure or to attempt to structure transactions with one or more financial institutions for the purpose of evading the currency transaction reporting requirements of 18 USC § 5313.

The cases say that structuring has three elements: (1) arranging one’s currency transactions with banks so that they are less than $10,000; (2) doing so with knowledge of the requirement that banks report currency transactions in excess of $10,000; and (3) with intent to evade the bank reporting requirement.

18 USC § 5317(c)(2) provides in part:
“Civil forfeiture. Any property involved in a violation of section 5313 . . . or 5324 of this title, or any conspiracy to commit any such violation, and any property traceable to any such violation or conspiracy, may be seized and forfeited to the United States in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.”

From the earliest days of the republic, the government has seized property used to perpetrate a crime, or produced by crime. But first the government must convict the property’s owner of a crime. This requires the government to carry the heavy burden of persuading the trier of fact that beyond a reasonable doubt that the elements of the crime are proved.

18 USC § 5317(c)(2) broadens forfeiture beyond its traditional criminal realm, into civil cases. To prevail in a civil case, the plaintiff need only persuade the trier of fact by a mere preponderance of evidence that the elements of the cause of action have been proved.

Broadly interpreting18 USC § 5317(c)(2), the IRS Criminal Investigation Division liberally seized bank balances. CID did so based upon its subjective interpretation that structuring had occurred, without any judicial intervention. It was a due process nightmare.

Congress responded by enacting the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”). This requires the government to procure an ex parte warrant from a U.S. District Court upon probable cause before seizing property. Within 60 days after the government seizes property, it must send written notice of the seizure to parties interested in the property (i.e., the owner). The interested parties then have 35 days to file a claim for the property. If a timely claim is filed, government has 90 days to either indict the claimant or bring a lawsuit in federal court seeking a judgment of civil forfeiture of the property. If the government does neither, it must return the seized property forthwith.

Congress struggled with the fungible nature of cash. For example, where there are many deposits to a bank account, some of which are allegedly structured and some of which are not, and there are many withdrawals from the bank account, so that the account balance turns over frequently, it is impossible to trace the balance in the account at any given time to one or more specific, allegedly structured, deposits. Congress resolved this by doing away with the tracing requirement for fungible property, but imposing a short statute of limitations—the government must bring a civil forfeiture lawsuit within one year after the allegedly structured transaction. The short statute of limitations works to the depositor’s advantage.

If the government does file a civil forfeiture action, the depositor’s accountant should be alerted to reconcile deposits into the depositor’s bank accounts to receipts reported on the depositor’s tax return for the subject year.

In a civil forfeiture lawsuit, the government prevails by proving the alleged structuring by a preponderance of evidence. The claimant can demand a jury trial. If, during the pendency of the suit, the claimant persuades the court that it needs a distribution of the seized funds to pay its expenses of suit, the court can order such a distribution to the claimant. If the claimant substantially prevails in the suit, the judge may in her discretion award the claimant legal costs against the government.

It is clear from the legislative history of CAFRA that Congress intended to limit civil forfeitures to alleged structuring connected with an underlying offense of drug trafficking or money laundering. Money laundering arises out of drug trafficking—that will be the subject of a separate post.

The business owner can also argue that the amount of money seized from his bank accounts violates the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution.

A person can gain exemption from the currency reporting requirements by having its bank complete FinCEN Form 110, Designation of Exempt Person, as to it and file the form with the IRS. Banks are reluctant file Forms FinCEN 110 for small businesses, as filing of the form draws greater IRS scrutiny upon the bank. But our owner should ask his bank to file a FinCEN Form 110 for it with the IRS, for several reasons. If the bank files the form, it will demonstrate to the jury the fortuitous nature of the government’s conduct. It will also benefit the business going forward. If the bank refuses to file the form, it will demonstrate to the jury the unfairness of the system.

Civil forfeiture remains a travesty of due process. The property owner receives no advance notice; he is not afforded an opportunity to participate in the District Court warrant hearing. Once the property is seized, the owner may file a claim, at peril of being indicted, or of incurring heavy civil litigation costs. The spectre of these unappealing potential consequences undoubtedly persuades many victims of civil forfeiture to do what the AUSA suggested here—go away without filing a claim.

 From Laura Krantz and Jessica Trufant. “Audit: Worcester DA’s office bought Zamboni, lawn gear with forfeited drug money“, Metrowestdailynews.com, 15 Feb. 2013.

The 2010 report “Policing for Profit” by our colleagues at the Institute for Justice gave Massachusetts a “D” for its asset forfeiture practices, noting:

Massachusetts has a terrible civil forfeiture regime.  Under Massachusetts civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it.  You are then in effect guilty until proven innocent, as you must shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture.  Further, law enforcement keeps 100 percent of all forfeited property.  The receipts are split: half to the prosecutor’s office and half to the local or state police.  Massachusetts is required to collect forfeiture data, but in response to requests, the state provided data only for 2000 to 2003.

It’s well past time for Massachusetts lawmakers to abolish civil forfeiture entirely and return the proceeds of any fines or forfeitures to the general funds controlled by municipalities and the state.

Our other coverage of forfeiture issues in Massachusetts:

Our coverage of the Motel Caswell case

Massachusetts suit threatens the permanent forfeiture of firearms without due process (March 2012)

Marginal reform no solution to systemic problems (Suffolk, June 2011)

At minimum, city counselors should exercise their power of the purse and deny further local funding to the Syracuse Police until they relent and return the secret slush funds to the duly elected representatives of the people.