By: Steve Daniels
Imagine you’re a small business owner who is driving down the highway, minding your own business, coming back from selling a large piece of equipment that has netted you $20,000.00 cash, that’s you’ve placed in an envelope in your glove compartment. All of a sudden you see those dreaded flashing lights in your rear-view mirror; you’re being pulled over by the police. Seeing the flashing red and blue lights in your rear view mirror is a heart racing moment, even for the most innocent of us. The police officer walks up to your vehicle and you inquire the reason for the stop; he informs you that you have a broken taillight. The police officer asks you what you are doing on the road that evening, where you are headed, all the questions that you may expect when being pulled over. But, after asking you these questions, the police officer isn’t satisfied, and he decides to have his police dog sniff your vehicle. The police K9 “alerts” on your vehicle, at which point the police officer says he has probably cause to search your vehicle. The officer proceeds to rummage through your vehicle, finding large sum of cash that you’re transporting after just having sold that piece of equipment for your business. The police officer asks why you have $20,000.00 in cash with you, and you calmly explain to him how you came to have this sum of cash with you. But the police officer doesn’t believe your story, instead he insist that you’re a drug dealer, because his K9 “hit” on your vehicle and that would only be due to you having drugs, or drug paraphernalia, in your vehicle. At this point you’re beginning to worry, “why doesn’t the officer believe me?” you question yourself. The officer continues to search your vehicle and finds nothing more, no evidence of drugs or drug paraphernalia, but he isn’t handing your cash over. Instead, he keeps it, regardless of your protest. Because the officer didn’t find anything further, he writes you a warning for the broken taillight, and sends you on your way, sans $20,000.00 in cash. Welcome to the United States, you are now a victim of Civil Asset Forfeiture. We will now show you real examples, and why this is “legal theft.”
Civil Asset Forfeiture is Legal Theft. “Civil asset forfeiture refers to a legal procedure by which the government is able to seize and ultimately forfeit (i.e. taken ownership of) the property of people suspected of wrongdoing – even when those people are never convicted of, or even charged with, a crime. Civil forfeiture should be distinguished from criminal asset forfeiture, by which the government is able to forfeit the property only after a person has been convicted of a crime in court.” ("Civil Asset Forfeiture", 2015)
A very similar scenario to the above fiction played out for a 40 year old Texas man, around 6:30 PM on February 27th, 2016, on a highway in Muskogee County, Oklahoma. The man’s name was Eh Wah, a refugee from Burma, who was the manager of a Christian music band that was touring for charity, and he was holding the proceeds from their shows. ("How police took $53,000 from a Christian band, an orphanage and a church", 2016) Mr. Wah found out just how easy it is for our government to steal our money, without having committed a crime. The police officers involved in this scenario ended up releasing him later that evening without charging him with a crime, but they did keep the bands charity proceeds. Five weeks later, he was charged and a warrant issued for his arrest, due to the alert from the drug sniffing dog and the inconsistencies in his story. After pro-bono involvement by the Institute for Justice, charges were eventually dropped and the band ultimately ended up having their charity proceeds returned, but this is not the typical outcome.
Rhonda Cox, from Arizona, had recently purchased a pickup truck. She let her son drive it often on, and one day she got a call from her son in August of 2013, that he had just been detained by the Pinal County Sheriff's department and that she needed to come help him. She rushed to the scene and was informed that because her son had allegedly installed some stolen parts on her truck, the Sheriff’s department would be seizing her vehicle. She asked the deputy what she needed to do to get it back, to which she was informed, there was nothing she would do, it was now the property of the Pinal County Sheriff’s Department. Rhonda was told that she would have to file suit against the county, but if she lost, she would also be responsible for the county’s attorney fees, effectively, holding her truck hostage. Rhonda knew she wouldn’t be able to afford an attorney, let alone the fees if she lost the case. Luckily for Rhonda, the ACLU intervened and have filed suit on her behalf. Law enforcement agencies that use the “loser pays” laws effectively make litigation a barrier to entry, for the defendant. The agency banks on the fact that the individual won’t be able to risk the fight, and the agency ends up being able to keep the property. ("Forbes Welcome", 2016)
When law enforcement agencies are given an incentive to seize property, you can only assume abuse of the system. To compound the issue, what law enforcement agencies do with the proceeds from seizures, is even more disturbing. “District attorneys in Oklahoma used forfeited funds to pay off student loans and resided in seized homes rent-free for years. Officials in Texas purchased a margarita machine. Officials in Georgia used forfeited money to pay for booze, parties, and concerts.” ("Civil Asset Forfeiture", 2015)
Law enforcement agencies state that they are underfunded, and that they use these seizures as a way to provide resources for their department, let’s take a look how just “underfunded” they are. According to the Department of Justice reports, the DOJ started taking forfeiture deposits in 1986, the year after the Treasury Forfeiture Fund was established. That year they received $93.7 million in deposits. “By 2014, deposits had increased 4,667 percent to $4.5 billion. Much of that increase came during the past decade and a half. From 2001 to 2014, deposits to the DOJ and Treasury forfeiture funds exploded by more than 1,000 percent (see Figure 1). Total deposits across those years approached $29 billion.” ("Policing for Profit - Institute for Justice", 2016)
These are the results at a national level, the Institute for Justice report states that it’s nearly impossible to determine the seizures on a local government level, as there is very little reporting by the states. ("Policing for Profit - Institute for Justice", 2016) What we can see, from the limited reporting, is widespread abuse.
Stefan D. Cassella, Assistant Chief, Asset Forfeiture and Money Laundering Section, U.S. Department of Justice, advocates for Civil Asset Forfeiture. Clearly he supports law enforcement, as he is employed by the DOJ which is the highest ranking agency in the United States. Cassella asserts, “Asset forfeiture has become one of the most powerful and important tools that federal law enforcement can employ against all manner of criminals and criminal organizations -- from drug dealers to terrorists to white collar criminals who prey on the vulnerable for financial gain.” He goes on to explain that law enforcement agencies use forfeiture laws for a “variety of reasons.” While nobody will dispute that criminals should not profit, or gain, from their illegal ventures, law enforcement should not have carte blanche in regard to asset seizure. Mr. Cassella makes a case for forfeiture by saying that in a criminal case, “there is no point in including a criminal forfeiture count in an indictment and presenting the issue to a jury if the defendant is not going to contest the forfeiture.” Well isn’t that convenient Mr. Cassella, I’m glad that you find yourself in a position to know the intent and thought process of an individual charged with a crime without giving him/or her, their day in court. In his publication, Mr. Cassella does state that, “all property owners -- whether they be criminal defendants or third parties -- are entitled to due process of law.” He says that seizure laws are governed by the same rules that govern property seized for evidence, under the Fourth Amendment. He also goes on to say that this isn’t the end of the process and that a property owner who has had their property seized can contest and file claim. As we demonstrated in the case in Arizona, many times these cases are cost prohibitive to the property owners, and they simply cut their losses, barring any third party intervention. This point can be confirmed by Mr. Cassella’s own words, where he states, “If a defendant facing criminal conviction for drug trafficking thinks it pointless to contest the forfeiture of the cash seized from him as drug proceeds at the time of his arrest, it is equally pointless to clutter the indictment with a forfeiture count when administrative forfeiture will answer.” Mr. Cassella is proving the point where, an individual charged with a crime may not even bother to contest, as who is going to believe them at that point. The burden of proof is moved from the state, to the defendant, or property owner, whichever the case may be. ("Forfeiture is Reasonable, and It Works", 2016)
There is little, if any protection for the property owners due to a lack of transparency and very complex legal process to have their property returned to them, and completely violates protection afforded to us under the Fifth Amendment of the Constitution. Due Process is defined as, “a requirement that laws and regulations must be related to a legitimate government interest (as crime prevention) and may not contain provisions that result in the unfair or arbitrary treatment of an individual —called also substantive due process.” ("Definition of DUE PROCESS", 2016) By seizing property, without conviction of a crime, and requiring the property owner file suit to get their property back, the government is presuming you guilty, without a trial.
Civil Asset Forfeiture is Legal Theft, a clear violation of the Fourth and Fifth Amendments. Forfeiture laws on the books should either be removed, or extremely restricted. Criminal forfeiture laws should instead be regularly utilized by law enforcement, instead of taking the “easy” route of civil asset forfeiture. Civil forfeiture has much less restriction, oversight, and transparency, which we can clearly see, is rife with abuse.
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