Posted on 12/19/2014 5:00:41 PM PST by SeekAndFind
Many Americans have not heard of civil forfeiture, but this outrageous, and expanding, law enforcement tactic is becoming more difficult to ignore.
Civil forfeiture does not receive the condemnation it deserves because most people cannot believe that, in the United States, the government can take property from individuals without charging them with a crime. This is the type of behavior expected of the Venezuelan government, not of the United States, where individuals are supposed to be assumed innocent until proven guilty.
Instead of charging property owners and having to prove guilt “beyond a reasonable doubt,” in civil forfeiture cases, law enforcement charges the property itself—which does not enjoy the same legal protection as do individuals. All that is necessary for civil forfeiture is suspicion based on a “preponderance of evidence” that some property was connected with criminal activity. The burden of proof to prove property not guilty is on individuals, as it is assumed to be guilty.
The government developed civil forfeiture laws to combat drug dealers and money launderers, but this system is now used to target innocent individuals. The warped logic behind civil forfeiture abuses is that property—inanimate objects—took part in crimes. People can use property to commit crimes, but it makes no sense to argue that vehicles, homes, or piles of cash willingly undertook criminal actions.
Though property is being charged, civil forfeiture victimizes innocent individuals. Take, for example, the case of Roderick Daniels. Daniels was pulled over in 2007 in Tenaha, Texas for going 37 in a 35 mph zone. Officers discovered $8,500 in cash that Daniels planned to use to buy a car. Daniels was forced to forfeit his money when the officers threatened him with money-laundering charges.
This situation is similar to the experience of George Reby, who had $22,000 stolen from him last year in Tennessee after he was stopped for speeding. Officer Larry Bates asked Reby if he had any large sums of cash in his vehicle and, when Reby answered truthfully, Bates proceeded to take all the cash under forfeiture laws. This happened even though Reby had proof that he was using the money to buy a car, evidenced by his active bids on eBay. During an interview, when Bates was asked why he did not include this critical fact in his report, Bates responded, “I don’t know.” Carrying cash is apparently all the evidence of guilt he needed.
These cases are not isolated. The value of property seized under civil forfeiture laws, including cars, homes, boats, electronics, jewelry, and other property, increased nearly tenfold from $407 million nationwide in 2001 to $4.3 billion in 2012. Over that time period, police have seized $2.5 billion in cash alone from almost 62,000 people without warrants or indictments, according to a Washington Post investigation.
Some states and localities have taken positive steps toward combatting civil forfeiture abuse. This summer, Minnesota enacted a law requiring criminal conviction before property can be taken. Earlier this month, Washington, D.C. also passed a bill to overhaul its forfeiture laws. However, civil forfeiture is not just a state and local issue. The federal government creates perverse incentives that perpetuate civil forfeiture abuse.
When federal law enforcement agencies seize property under forfeiture laws, the proceeds are transferred to the Department of Justice's Asset Forfeiture Fund, where the funds can be directed to law enforcement activities.
The federal government’s role does not end here. Under the federal equitable sharing program, funds seized by local law enforcement can be transferred to the federal level to bypass state or local prohibitions against civil forfeiture, with Washington taking a 20 percent cut (which goes to DOJ's Fund). States and localities are powerless to do anything when the federal government awards forfeiture funds to local law enforcement, as federal law trumps state or local law.
There are practically no restrictions on how forfeiture funds can be used. As Columbia, Missouri, police chief Ken Burton said, “[Forfeiture funds are] kind of like pennies from heaven... It gets you a toy or something you need.” One problem: These “pennies from heaven” are forcibly taken from individuals who are often not guilty of a crime. “We just usually base it on something that would be nice to have, that we can’t get in the budget. We try not to use it for things we need to depend on,” Burton continued. If police departments truly need more funding, there are several more legitimate ways for them to increase their budgets, without stealing from innocent individuals.
One federal attempt to reform civil forfeiture is H.R. 5502, sponsored by Reps. Tony Cardenas, (D-CA), and Scott Garrett, (R-NJ), a companion bill to Senator Rand Paul's (R-KY) FAIR (Fifth Amendment Integrity Restoration) Act. The FAIR Act would increase the standard for civil forfeiture from “a preponderance of the evidence” to “clear and convincing evidence” and rewrite the civil forfeiture rules to take away the federal government’s ability to transfer seized property back to local police departments. Seized funds would go to the general fund, not the DOJ. These reforms would go a long way toward eliminating current perverse incentives.
As one of his last acts as Ways and Means Committee Chairman, Rep. Dave Camp (R-MI) worked with Rep. Sandy Levin (D-MI) to introduce the Taxpayer Protections Against Abusive Seizures Act. The Act would allow those whose property was seized by the IRS to request a court hearing within 14 days of seizure. The hearing would then happen within another 14 days. If no probable cause is found at the hearing to warrant seizure, the property must then be returned. Though this bill is a welcome step forward, the FAIR Act does a better job of eliminating the underlying incentives that fuel civil forfeiture seizures from law enforcement agencies.
As the focus of the bipartisan Camp-Levin bill shows, it is not just law enforcement agencies that are abusing civil forfeiture—the IRS is in on it too. Last month the New York Times exposed the story of Carole Hinders, from whom the IRS took $33,000. Similar to the cases of Daniels and Reby, Hinders was not charged with any crime. Still, the IRS assumed that since she made cash deposits of less than $10,000 at a time (the threshold which triggers a bank report to the government), she was laundering funds, and confiscated her money.
In addition to the legal and moral issue of ignoring the principle of innocent until proven guilty, there was another problem—Hinders owns a cash-only Mexican restaurant. This should have caused the IRS to at least perform some further investigation before taking money Hinders used to keep her small business open.
Hinders’s mistreatment is all too common. The IRS made 639 such seizures in 2012, a 460 percent increase from 2005. Only about 20 percent of these seizures led to a criminal case, meaning many innocent people had their lives and businesses ruined by civil forfeiture.
What is unusual about Hinders’s case is that that on Monday the government moved to drop its crusade against Hinders and to return the stolen funds. The Institute for Justice, a non-profit law firm that defends economic liberty, helped to clear Hinders’s name (though the IRS is still pushing for the right to refile the bogus case). For most individuals, it makes little sense to fight to have their stolen property returned. Since the cases are civil, not criminal, there is no government assistance to defend oneself (or one’s property). It is easier, and cheaper, to let the government get away with theft than to fight to have unjustly stolen property returned.
The Institute for Justice also had success helping Terry Dehko get his money back. Terry had $35,651.11 seized from his bank account by the IRS in January 2013. Dehko is an immigrant and owner of a grocery store, in Fraser, Michigan. He made frequent cash deposits at a local bank in order to prevent too much cash from accumulating in his store. Again, that alibi was not good enough for the IRS. The name of the case was United States of America vs. $35,651.11 in U.S. Currency, which highlights the absurdity of charging property with criminal actions. Dehko was never charged with a crime.
Civil forfeiture laws, though designed as legitimate law enforcement tools used to combat the international drug trade and terrorism funding networks, have mutated into a way for government to steal from innocent individuals. Yes—believe it or not, this is happening in the United States.
Interesting link! From it:
“The report reveals that 86 percent of asset forfeitures during the previous year [in Michigan] were for alleged administrative violations, not criminal offenses.”
Looks like the proposed Michigan law in the link is only about more disclosure.
However, a link in the link says Minnesota has reformed its forfeiture law to require a criminal conviction, like in NC.
At the risk of getting flamed, I have to speak out on this topic. As a former detective that dealt in asset forfeiture, the examples given don’t explain the vast majority of forfeiture and how it actually works.
There are only two ways that a police department can seize anything. It has to be either through “facilitation”, ie: the use of an automobile to commit a crime, or through “proceeds” which would be the “fruits” of criminal activity.
There is ALWYS an underlying offense. I can’t take money away from you just because you have it. I CAN seize money if a drug dog alerts on it, although this is tougher today because of the amount of drug-tainted money in circulation. Or, if as a result of our financial investigation you show an annual income of $25,000 and drive a brand new $200,000 dollar fully paid for automobile with no explanation of how you paid for it. And there still has to be an underlying offense.
This only gives me probable cause for the seizure. I still have to notify the “owner” via certified mail that the item was seized and I work with a prosecutor to present a case before a judge at a forfeiture hearing. The judge reviews the EVIDENCE of either facilitation or proceeds and determines if the state has met the threshold for forfeiture. The person who claims the property has the right to present his case and the judge makes a determination. It is not up to the officer to make the determination. It is a court hearing.
The burden is ALWAYS on the state to show either facilitation or proceeds. In many instances, a drug dealer will place the vehicle in the name of a third party to escape forfeiture. In those rare instances, the third party either fails to show up for a hearing or walks away from the car because he doesn’t want to become involved in the larger drug investigation.
Anyone who says they know of someone who had their property “stolen” through forfeiture laws doesn’t know the entire story. I’ve done way too many investigations to buy into this.
Use civil forfeiture to seize all wire transfers to Mexico as unpaid taxes for those working under the table here.
Blame the cops all you want, I blame the politicians and the laws they create that allows, even compels cops to do it. They don't have a lot of choice in following the law.
Wow - you personally worked the vast majority of forfeiture cases in the USA?
Use civil forfeiture on just a small percentage of the illegals and the vast majority of the rest would self deport in order to keep their loot.
Not buying it.
Sorry but that is not what is happening. Look at the Texas situation last year or before that. LE was literally extorting people to sign away any claim to money seized by threatening them and their children. A court finally slammed that one down hard.
The majority of these cases never result in criminal charges. And, as is pointed out, the government deliberately placed the burden of proof on the defendant. That wasn’t an accident. They also created a situation where the costs of defending oneself can easily exceed the value of the seized property even if successful. And make no mistake, this is not simply happening to people with a 100k in cash. As in this case, it happens to people with no more money than that of a used car purchase. In one case they stole bail money that a family had gathered up for a son.
Yes, most of these will be of criminals. But cops and the system have stopped caring if they harm innocent people with this activity. And as with SWAT, the expanded use of this activity guarantees innocent victims through sheer numbers.
Which is the American way?
1. A cop finds a wad of cash. In his mind, he is ‘certain’ it is from ill gotten gain. I marked certain, because cops are known for being ‘certain’ about a lot of things and are wrong. He then seizes it without being able to even claim a known crime happened. Just assumes one did. Then the suspect has to prove a negative event or loose the property.
2. A cop has to have enough evidence of a crime first, and be forced to make his case that it happened. That in order to make such a charge, he would clearly first need enough to make an arrest and charge the suspect.
One of these two is the American way, the other is the communist way. I think we all know which is which.
“Blame the cops all you want, I blame the politicians and the laws they create that allows, even compels cops to do it. They don’t have a lot of choice in following the law.”
Nonsense in the extreme. They are morally fully responsible for any act they perform. They aren’t soldiers at war. If they recognize an act as wrong, they have the moral obligation to refuse that task. They can even quite, if need be.
They can also speak out against it. Cops had no problem getting heard when they got angry at the ball players supporting that Ferguson kid. They found a voice then, so I can only assume they could voice outrage at unethical activity they are ‘forced’ to perform. That is, if it actually bothers them.
Yes, they might be punished or fired. So what? It is time to decide if right and wrong are more important than that almighty government pension. But choose that pension, and don’t be surprised when people hold you responsible for choosing to do the wrong thing.
...”they have the moral obligation”....
By whose standards of morality? You cannot dictate morality.
Sounds like Officer Larry Bates has a severe "blanket party" deficiency. George should wait for a suitable length of time to remedy that situation...
yeah, they were just following orders, like some other guys that ended up getting hung for it in 1945-46.
I'll note in passing that "cops" witnessed Bill Clinton perjuring himself, and Jon Corzine stealing a couple of billion bucks, but I guess the witnessing cops DID have a lot of choice in following the law... LOL! :)
“You cannot dictate morality.”
The hell we can’t. That is what law is. They can make any decision about their values that they want. It won’t change mine, or my recognition they are choosing to participate in an immoral activity they KNOW is harming innocent people.
As for “By whose standards of morality?”
I’m not buying that they don’t know this is wrong and against the Constitution. They know it is wrong, and they don’t care.
By that standard, anything legal is moral. I can assure you that it not the case.
Comparing theft with the murder of millions.
“By that standard, anything legal is moral. I can assure you that it not the case.”
You got the point though. No one is free to make their own code of ethics, live on them, and never face criticism or even law regarding it.
That is the entire point of LE. For a group to first make it their mission to enforce society’s value, and then decide they are supposed to be free from that same constraint, is hypocritical.
Think about what it would mean if everyone was free to make their own standards of behavior. Think some would redefine the ethics of rape and murder?
Inside your head, you’re free to have whatever values you want. But society is in no way obligated to put up with you acting on it.
Whatever these cops think, I know that taking people’s property when you can’t even charge them with a crime is unethical. And if cops can’t agree with that, then clearly they have no ethical standards. All they have left is your very comment of
“By that standard, anything legal is moral. I can assure you that it not the case.”
I'm not inclined to pursue a discussion on those terms.
Sorry, but I believe your basic premise is false from the very beginning. A street crew stops a subject that has a large amount of cash in the car. The officer cannot arbitrarily seize the funds because of his “suspicion”. It doesn’t work that way.
The cases that were cited in the original article are from the website of an organization that is against civil forfeiture, hardly an unbiased source.
The one example of the seizure in Tennessee may very well be a legitimate case of abuse, but I don’t know all the facts and you don’t either. And anecdotally, we all know of stories about the southern police agency that has an axe to grind against northerners, but most of us have never experienced that bias first hand.
Look, I understand the argument against civil forfeiture.
At first blush, it looks like the deck is stacked against the average person. But, from my own experiences in dealing with forfeiture, there are more hoops to jump through than what has been presented here.
Most of the arguments on this thread are anecdotal or come from a website that is biased or from a news media source, that if we were talking about Obama, would be given little respect because of bias. So how do they become credible when it comes to forfeiture?
Are there abuses in the system? Sure. But if a clerk at a Seven-Eleven short-changes you, does that make all Seven-Elevens crooks? Hardly. I would guess that most of the posters here have never dealt with asset forfeiture personally. Again, the only reference is second-hand information and sometimes some pertinent facts are left out either inadvertently or by design to make a point.
There have been some claims made in this article that from my own experience don’t ring true. For example, the claim was made that there is no accounting of the funds...patently false. We were required to maintain a complete accounting of monies in and monies out. Anytime there was a case disposition, there had to be a court order that went into the case jacket. It wasn’t a situation where I could go to the property room and remove money and walk out the door. If we were successful in gaining forfeiture, the property room received a copy of the court order before the money was released.
Same way with an automobile. In order for the police department to gain title to the vehicle, a copy of the court order was required to process the title work. There is always a paper trail, anyone who says the cops just took the money isn’t being truthful.
As for your assertion that an arrest has to be made, let’s look at that scenario. In a drug-related situation you can have two types of seizure. First, a street cop stops a car and finds a large sum of money. His suspicion is that it is the result of drug dealing. The officer requests the presence of a drug canine unit and the dog alerts on the cash. (By the way, this doesn’t happen much any more because of the large amount of cash in circulation that has been exposed to drugs.) The money may be seized pending an investigation. Usually, a detective will follow-up to determine if the seizure is “good.” The detective will confer with the prosecutor and the case disposed. No arrest made at the time of seizure.
Second, SWAT officers execute a search warrant on a suspected drug dealer (SWAT usually is not involved in the issuance of the warrant, only the execution) a large amount of cash is discovered. The money is seized. Forfeiture action is initiated. No arrest is made.
In the first scenario, there is no probable cause to effect an arrest. There were no drugs found, the probable cause for the traffic stop is a moving violation and the penalty is usually a fine, no incarceration. The probable cause for the seizure is the dog’s alerting to the drug-tainted money. (Again, this is hardly used anymore and wouldn’t stand up in court as pc.) In most instances, you have to look at the totality of the circumstances. There may be more information that is not released. The article was written with the bias of the organization.
Scenario 2, the suspected drug dealer has cash found in a search warrant. In most instances, the drug detective has already purchased a controlled substance off the suspect which is the basis of the probable cause for the search warrant. (Remember, a judge has an ex parte hearing in order to grant the warrant.) The suspect usually will agree to roll-over on his supplier in order to stay free. Again, no arrest made.
The mere fact that there is no arrest at the time of seizure is not a good indicator of the true story. I would also question the source of the story since the article came from an organization that is opposed to forfeiture. It is easy to cherry-pick stories that further your agenda.
Forfeiture is a tool that can be used (or abused) by police agencies. Most of the detectives I’ve worked with from other agencies are very diligent in using the law as it was intended. I am sure there are others that abuse the law, but don’t paint all agencies with the same brush.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.