DHS Agencies Are Taking Millions In Cash From Travelers Every Year, Can't Be Bothered To Stop Any Crimes

from the taking-taxpayers'-dimes-on-the-taxpayers'-dime dept

In a little over 15 years, DHS agencies interacted with millions of travelers passing through our nation's airports… and relieved them of over $2 billion in cash. (And that's just agencies like the CBP and ICE. The DEA also lifts cash from airline passengers -- something it loves doing so much it hires TSA agents to look for money, rather than stuff that could threaten transportation security.)

That's just one of several disturbing findings in the Institute for Justice's (IJ) new report [PDF] on the DHS's ability to separate travelers from their money. Utilizing the Treasury Department's forfeiture database, the IJ discovered the DHS is a fan of taking cash and does so more frequently at certain airports. The most popular airport for cash seizures is, by far, Chicago's O'Hare. In 2014, the airport accounted for 34% of all cash seized despite handling only 6% of all air travelers.

More travelers means more opportunities, which explains some of the increase in seizures over the past decade. But as the IJ points out, seizures are outpacing the bump in travel stats.

Between 2000 and 2016, the number of air travelers increased 46%, while the inflation-adjusted value of currency seized at airports by DHS agencies increased 140% and the number of airport currency seizure cases grew 178%.

Any international airport will be patrolled by CBP and ICE agents looking for cash to seize. And they're not looking to catch drug dealers, human traffickers, or any other criminals that might be carrying cash around. No, the most common criminal activity to result in forfeitures is nothing more than a reporting violation.

Federal law requires travelers to declare any currency over $10,000 when traveling into or out of the country. It's pretty easy to get this done when traveling into the US, as arriving visitors will be required to go through Customs and declare anything they're bringing into the country, including cash. Outbound travelers may not realize this applies to them and since they're not required to pass through Customs on the way out, they may have no idea they're violating the law. That's an opportunity DHS agencies are more than happy to capitalize on. Half of all seizures between 2000-2016 were for violating this reporting requirement.

In fact, serious criminal activity is something no one seizing money seems very concerned about. Asset forfeiture isn't about dismantling criminal empires. It's about taking cash from people who have limited means to fight back. If the government has all your cash, it's pretty tough to hire a lawyer and fight an uphill battle against a system that dispenses with the property's former owner completely to engage in litigation against the cash itself.

Overall, 69% of DHS agency airport currency seizure cases were not accompanied by an arrest, regardless of the alleged offense. This means less than a third of the time was an offense egregious enough, or the evidence strong enough, to warrant an arrest.

This isn't just a DHS thing. It's an everybody thing.

In 2017, the DOJ’s Office of the Inspector General conducted an in-depth study of a sample of 100 Drug Enforcement Administration forfeiture cases. The study found that only 44 of those cases advanced or were even related to a criminal investigation. That same year, the Treasury Inspector General for Tax Administration reviewed a sample of 278 cases in which currency was seized under “structuring” laws, which prohibit conducting bank transactions below $10,000 to evade federal reporting requirements. The law is in place to prevent crimes like money laundering, but the study found that in 91% of cases, the seized funds were from a legal source, such as a family-owned business. The study also found that IRS agents were encouraged to conduct “quick hits,” where property was easier to seize, “rather than pursue cases with other criminal activity (such as drug trafficking or money laundering), which are more time-consuming.”

Taking money from people has always been easier than fighting crime. That much has been obvious for years. The IRS said the quiet part loud on accident. This report says everything the government isn't willing to admit to the public, much less itself: the point of forfeiture programs is to enrich those performing the forfeitures. That's it. That's the entire thing. Any reductions in criminal activity are purely coincidental.

Filed Under: asset forfeiture, cbp, civil asset forfeiture, dhs, ice, legalized theft, tsa

Michigan Supreme Court: Selling A $24,000 House (And Keeping The Proceeds) Over An $8.41 Debt Is Unlawful

from the please-stop-defending-the-indefensible,-government-legal-reps dept

This seems like the sort of thing a court shouldn't need to sort out, but here we are. More specifically, here are two plaintiffs suing over Oakland County, Michigan's forfeiture policy. This isn't civil asset forfeiture -- where property is treated as guilty until proven innocent. This isn't even criminal asset forfeiture -- the seizure of property by the government following a conviction.

But this form of forfeiture can be just as abusive as regular civil asset forfeiture. There's no criminal act involved -- real or conjectured. It's the result of a civil violation: the nonpayment of property taxes. And Oakland County, the plaintiffs argue, is performing unconstitutional takings to unjustly enrich itself.

It's not that these sorts of things are uncommon. Tax liens are often put on property when tax payments are delinquent. It's that one of these seizures -- and subsequent auction -- was triggered by a delinquent amount that would have required the county to make change from a $10 bill. (via Volokh Conspiracy)

This is from the opening of the state Supreme Court's decision [PDF], which shows just how much the county government can profit from these forfeitures.

Plaintiff Rafaeli, LLC, owed $8.41 in unpaid property taxes from 2011, which grew to $285.81 after interest, penalties, and fees. Oakland County and its treasurer, Andrew Meisner (collectively, defendants), foreclosed on Rafaeli’s property for the delinquency, sold the property at public auction for $24,500, and retained all the sale proceeds in excess of the taxes, interest, penalties, and fees.

That's right. It only took $8.41 to initiate these proceedings. Even after accounting for the additional fees, the county turned less than $300 in delinquencies into a $24,200 profit.

Rafaeli, LLC isn't the only plaintiff. Another property owner, Andre Ohanessian, saw $6000 in taxes, fines, and fees turn into a $76,000 net gain for the county when it auctioned his property for $82,000 and kept everything above what it was owed.

The lower court said there was nothing wrong with the government keeping thousands of dollars property owners didn't owe it.

The circuit court granted summary disposition to defendants, finding that defendants did not “take” plaintiffs’ properties because plaintiffs forfeited all interests they held in their properties when they failed to pay the taxes due on the properties. The court determined that property properly forfeited under the GPTA [General Property Tax Act] and in accordance with due process is not a “taking” barred by either the United States or Michigan Constitution. Because the GPTA properly divested plaintiffs of all interests they had in their properties, the court concluded that plaintiffs did not have a property interest in the surplus proceeds generated from the tax-foreclosure sale of their properties.

The appeals court felt the same way about the issue, resulting in this final appeal to the state's top court. The Michigan Supreme Court says this isn't proper, going all the way back to English common law that had been adopted by the new nation more than two hundred years ago.

At the same time that it was common for any surplus proceeds to be returned to the former property owner, it was also generally understood that the government could only collect those taxes actually owed and nothing more.

[...]

This Court recognized a similar principle in 1867, stating that “[n]o law of the land authorizes the sale of property for any amount in excess of the tax it is legally called upon to bear.” Indeed, any sale of property for unpaid taxes that was in excess of the taxes owed was often rendered voidable at the option of the landowner. Rather than selling all of a person’s land and risk the sale being voided, officers charged with selling land for unpaid taxes often only sold that portion of the land that was needed to satisfy the tax debt. That is, early in Michigan’s statehood, it was commonly understood that the government could not collect more in taxes than what was owed, nor could it sell more land than necessary to collect unpaid taxes.

That all changed with the General Property Tax Act. The current version of the GPTA unilaterally declares all ownership rights "extinguished" the moment the government begins proceedings against the property, well before the foreclosure sale occurs.

This law -- as exercised in these forfeitures and auctions -- is unlawful, the Supreme Court says.

We conclude that our state’s common law recognizes a former property owner’s property right to collect the surplus proceeds that are realized from the tax-foreclosure sale of property. Having originated as far back as the Magna Carta, having ingratiated itself into English common law, and having been recognized both early in our state’s jurisprudence and as late as our decision in Dean in 1976, a property owner’s right to collect the surplus proceeds from the tax-foreclosure sale of his or her property has deep roots in Michigan common law. We also recognize this right to be “vested” such that the right is to remain free from unlawful governmental interference.

The government argued that without being able to take everything (even when less is owed), it does not have a stick of sufficient size to wield against delinquent taxpayers. Nonsense, says the state's top court. The state can still collect what is owed. What it can't do is take more than that.

We recognize that municipalities rely heavily on their citizens to timely pay real-property taxes so that local governments have a source of revenue for their operating costs. Nothing in this opinion impedes defendants’ right to hold citizens accountable for failing to pay property taxes by taking citizens’ properties in satisfaction of their tax debts. What defendants may not do under the guise of tax collection is seize property valued far in excess of the amount owed in unpaid taxes, penalties, interest, and fees and convert that surplus into a public benefit. The purpose of taxation is to assess and collect taxes owed, not appropriate property in excess of what is owed.

If the county wants its eight dollars, it can take its eight dollars. Everything above that still belongs to the original property owner. This should seem obvious, but it isn't. It took the state's top court 49 pages to arrive at this conclusion. What seems obvious to citizens is far too often deliberately unclear to government agencies. Legislation is rarely written in plain language. And it's crafted by people who have a vested interest in ensuring their employer's financial stability. The end result -- years down the road -- is the government turning a $285 foreclosure into a $24,000 surplus. The final insult is taxpayers paid for county officials to argue against the taxpayers' best interests. But, from now on, the government will have to share its takings with the people it's taking property from.

Filed Under: civil asset forfeiture, debt, michigan, oakland county, punishment, takings

DEA Returns Money It Stole From An Innocent Woman, Gets Court To Let It Walk Away From Paying Her Legal Fees

from the abolish-DEA dept

Just another reminder the Drug Enforcement Agency doesn't care all that much about drugs and/or enforcement. If there's money to be made, the DEA is all in. If it can score easy wins by engaging in entrapment, it will. But the drugs will flow and the damage will be done. And the DEA will be there to hoover up the cash… even when the cash has nothing to do with drugs.

The DEA stole another person's life savings back in 2015. A raid of house predicated on the theory Miladis Salgado's husband was involved in drug dealing ended with the DEA walking off with $15,000 Salgado had saved for her daughter's quinceanera. This was money Salgado had saved while working at a duty-free shop in the Miami airport, along with gifts from friends and relatives.

And it all was gone after the DEA raided her house. The good news is Salgado eventually got her money back. But it took time and it took a lawyer. In the end, the DEA admitted it had no evidence tying her husband to drug trafficking.

It would take two years for Salgado to recover her money from the DEA, which did not arrest her husband because agents discovered he had not been selling drugs after all. The lead DEA agent admitted in a court deposition that there was no evidence supporting the allegation.

If you sue (which means being able to pay a lawyer), sometimes (and only sometimes) you can get your money back. But that's not the end of the story. The DEA handed the money back to Salgado before a judge could rule on the merits of the case. The agency did this to ensure it didn't have to compensate Salgado for fighting to get her money back.

Before a critical ruling in the civil forfeiture dispute with Salgado, Justice Department lawyers on their own decided to return her money. But at the same time, they argued that Salgado had not really won because a judge granted the feds the right to refile their civil case in the future — even though they probably had no intention of doing so. As a result, the government argued it did not have to pay her attorney’s fees, which she said amounted to $5,000.

Unfortunately, the judge agreed with the government's arguments. It was clear the government had no intention of trying again at the state level. It had only given the money back to avoid a ruling against it that would have made it liable under CAFRA for her legal fees. The court somehow came to the conclusion that the last-minute release (after more than two years of litigation) of the seized money wasn't a bad faith maneuver by the DEA to dodge paying more than it had taken in.

Salgado's case is now in front of the Supreme Court, which is expected to rule on her appeal in April. Hopefully, the court will align itself with citizens who've had money taken from them under the pretense that it's been illegally obtained -- all without a single criminal charge being brought against them. A North Carolina federal court wouldn't let the IRS duck fees in a forfeiture case where the government dropped the case after the victim fought back. Neither should the Supreme Court. Allowing government agencies to use the costs of litigation to deter people from recovering property the government admits (via dismissal, etc.) did not come from illegal sources makes it that much easier for the government to stay in the legalized theft business.

Filed Under: asset forfeiture, civil asset forfeiture, dea, legalized theft, miladis salgado

Five Weeks After Being Sued, DEA Agrees To Return $82,000 It Stole From A Retiree

from the weird-how-that-works dept

Sometimes all it takes is a lawsuit and little bad press to make the federal government at least temporarily regret its thieving ways.

In January, the DEA was sued by Rebecca West and her father Terry Rolin after the agency lifted Rolin's life savings -- more than $82,000 -- from West at the Pittsburgh airport. The supposedly travel safety-focused TSA agents saw the cash in West's carry-on luggage and decided to notify State Troopers and the DEA. After a few extended conversations with West, the DEA decided to seize the money under the theory that a person with this much cash on their person must have obtained it illegally.

The Institute for Justice -- which is representing West in her lawsuit -- reports the DEA has suddenly and mysteriously decided the money agents took from West was probably honest money after all.

Terry Rolin’s life savings of $82,373 will finally be returned to him, nearly six months after it was wrongfully seized by the Drug Enforcement Administration (DEA) from his daughter Rebecca Brown as she traveled through Pittsburgh International Airport to her home in Boston. Without offering any apology for the harm caused by confiscating Terry’s life savings for six months, the DEA informed the Institute for Justice (IJ) via letter that: “After further review, a decision has been made to return the property.”

This looks like someone further up the org chart saw the bad press and lawsuit generated by this suspicionless seizure and told someone to get the suddenly tainted money the hell out of the DEA's coffers. The letter [PDF] is 99% formality, explaining nothing about the original seizure. It simply states that if Rolin owes any money to the government, the government will deduct it from the $82,373 the DEA deducted in whole from West's luggage six months ago.

The DEA could have done this at any point before being served with a lawsuit. Presumably this return of Rolin's legally-obtained life savings is being done to moot as much of his lawsuit as possible. It's not going to work. The lawsuit continues, with the Institute for Justice and its clients hoping to secure a win that might force the TSA to focus on travel safety (rather than cash) and the DEA to actually provide suspicion that's far more reasonable than whatever excuse agents are currently using to steal money from travelers.

“We are glad that Terry will get his money back, but it is shameful that it takes a lawsuit and an international outcry for the federal government to do the right thing,” said IJ Senior Attorney Dan Alban. “We know that this routinely happens to other travelers at airports across the United States. Terry and Rebecca are going to fight on until TSA and DEA end their unconstitutional and unlawful practices of seizing cash from air travelers without probable cause or reasonable suspicion.”

Hey, DEA: if you don't like being sued, maybe don't do stuff that will get you sued. I mean, that's the kind of logic you law enforcement types understand, right? Don't break the law, etc. Asset forfeiture is hot, unconstitutional garbage. You can't cripple drug lords by robbing random people of their life savings. But if the DEA actually went about the business of dismantling the drug trade, it might move resources away from its "taking cash from travelers" outreach program. And that would apparently be unacceptable.

Filed Under: asset forfeiture, civil asset forfeiture, dea, rebecca west, terry rolin, tsa

Michigan State Police Spend The Weekend Getting Ratioed For Bragging About Stealing $40,000 From A Driver

from the at-least-$40k-in-reputational-damage dept

The Michigan State Police recently informed Twitter users that it's engaged in stealing money from drivers. I don't know what it expected from this announcement, but I'm sure spending a few days being ratioed wasn't what the agency had in mind.

Here's the first part of the MSP's "Yes, we steal money" announcement:

If you can't see the tweet, it says:

Trooper from First District Headquarters conducted a traffic stop for following too close on I-75 in Monroe County on March 3rd. Further investigation resulted in locating and seizing approximately $40,000.00 in cash. The driver was a 33 year old male from out of state and was

Here's the kicker, picking up where the first tweet left off:

not arrested. The investigation continues.

So, some alleged criminal, originally only suspected of "following too close" was pulled over, hassled into a search, and relieved of his $40,000 by state troopers. No arrest, but I guess the money was guilty of something.

This statement, issued a day after the tweets, doesn't really clarify anything. What it does show is the MSP enaged in catch-and-release drug enforcement, where suspected criminals are free to go, but not any cash they happen to have on them.

Lt. Brian Oleksyk, MSP public information officer, said the traffic stop and seizure were related to a narcotics investigation.

“We develop probable cause in order to seize money,” he said.

That's a blanket statement about ideals. That's not a statement specific to this "investigation," which began with a pretextual stop and ended in a windfall for the State Police.

But the most instructive thing about this whole experience is the hundreds of replies calling the State Police thieves. It shows people are pretty sick of hearing cops brag about how they took money from people without actually arresting the supposed criminals who were carrying the cash. Agencies engaged in civil asset forfeiture do not have broad support from the public. If they actually believe they do, they're lying to themselves.

Cash is still a legal way to pay all debts public and private. It says so right on the money. Traveling with cash does not make someone a criminal and the existence of cash isn't the same thing as actual probable cause. I doubt being ratioed on Twitter will make the MSP rethink its forfeiture programs. But it does make it clear many people see "forfeiture" and "theft" as synonymous.

Then there's the question of whether the MSP can actually do this. Last year, a law was passed effectively banning forfeitures under $50,000 without a conviction.

Starting in 90 days, the laws will prohibit assets taken in suspected drug crimes from being forfeited unless the defendant is convicted or the value of the money and property is more than $50,000, excluding the value of contraband.

Prosecutors and cops made highly-questionable arguments against the new law, claiming having to prosecute drug dealers would result in fewer drug dealers being prosecuted. Unless there's a loophole the MSP is planning to use (like the federal option), this set of tweets was the State Police announcing to everyone the agency was planning to break the law. Not a good look.

Filed Under: asset forfeiture, bragging, civil asset forfeiture, legalized theft, michgan state police, michigan

DEA, TSA Sued For Stealing 79-Year-Old Man's Life Savings From His Daughter At An Airport

from the take-what-thou-wilt-that-is-the-whole-of-the-law-i-guess dept

The DEA doesn't really want to stop the flow of drugs into the country. Let's not kid ourselves. Better yet, let's not allow the DEA to kid us it's in the drug enforcement business. It's in the cash business. It wants to seize cash. It is so cash-focused it hires TSA agents to alert the DEA whenever they see cash in people's luggage. It also regularly peruses airplane and railway passenger manifests to find targets it feels might be carrying cash.

Forfeiture laws make this easy. They make seizing cash so easy hundreds of law enforcement agencies engage in the same fishing trips for cash, ignoring drugs and seizing money from drivers traveling out of the states they're supposed to be defending against incoming drugs.

It's not illegal to travel while carrying large amounts of cash. But it may as well be. The Institute for Justice is representing a 79-year-old man who had his life savings seized by the DEA at an airport -- a seizure that has not been followed up with any official accusations (charges, indictments) of wrongdoing.

Terry [Rolin], 79, is a retired railroad engineer born and raised in Pittsburgh. For many years, he followed his parents’ habit of hiding money in the basement of their home. When Terry moved out of his family home and into a smaller apartment, he became uncomfortable with keeping a large amount of cash. Last summer, when his daughter Rebecca was home for a family event, Terry asked her to take the money and open a new joint bank account that he could use to pay for dental work and to fix his truck, among other needs.

Rolin gave his lifetime savings of $82,373 to his daughter. She checked to see if it was illegal to travel with this large amount of cash. She discovered it wasn't and packed it in her luggage. But a TSA agent spotted the cash and detained her for questioning by Pennsylvania State Troopers. Eventually, she was allowed to leave. But she was stopped by DEA agents when she attempted to board her plane.

Here's what happened then, taken from Rolin and West's proposed class action lawsuit [PDF] against the TSA and DEA:

Despite Rebecca’s explanation, and without probable cause, the DEA agent seized Terry’s life savings because it was greater than $5,000 and was thus considered a “suspicious” amount under DEA’s policy or practice regarding the seizure of cash from travelers at airports.

DEA has continued to hold Terry’s life savings since August 26, 2019, and has taken actions to permanently keep the money using civil forfeiture.

Neither Terry nor Rebecca has been arrested for or charged with any crime.

The initial and continued seizure of Terry’s life savings since August 26, 2019, has prevented him from replacing his teeth and repairing his truck, among other expenses.

According to the TSA's own policies, it should not be scanning people's luggage for "suspicious" amounts of cash. It is only supposed to be concerned with items that threaten airline security, like explosives and weapons. The suit says TSA agents routinely seize cash in contravention of these policies and do so even when it's been determined the traveler and their belongings pose no security threat.

Instead agents flag any "large" amount of currency, which appears to be in the area of $10,000 or more. This is likely due to multiple law enforcement agencies falsely claiming large amounts of currency are suspicious, if not illegal. The DEA leans heavily on the TSA to perform this extraneous screening for it.

The DEA's standards for "suspicion" are even laxer than those unofficially followed by the TSA. According to the lawsuit, the DEA will seize any amount over $5,000 whether or not probable cause exists to perform the seizure. Once the DEA has the money, it will eventually begin forfeiture proceedings. Time is of the essence for those fighting to get their money back, but the DEA is never in any hurry because it's not its money and it has no immediate need for funds.

We already know the DEA is lousy and focused on easy wins, preferably those that involve forfeited funds. But the TSA is part of the problem. It focuses on cash despite it having no statutory authority to seize people simply because they're carrying cash. The TSA does not prohibit people from carrying cash and has produced no evidence to back up its apparent belief these people are more dangerous or likely to be engaged in illegal activities as other passengers not carrying cash.

The lawsuit seeks a declaration finding the TSA and DEA's actions unconstitutional and an injunction forbidding either agency from seizing individuals or their belongings solely on the basis of them carrying cash -- something that is not actually illegal. If it is granted class status, this will make it much easier -- and much less expensive -- for others who have been abused by these federal agencies to demand their money back.

Filed Under: asset forfeiture, civil asset forfeiture, dea, legalized theft, terry rolin, tsa

South Carolina Judge Says State's Asset Forfeiture Programs Are Unconstitutional

from the and-SC's-programs-are-similar-to-others-all-over-the-nation dept

Asset forfeiture certainly seems unconstitutional. But we don't have a lot of case law actually saying that. Something that began in the United States as a way to punish wrongdoers located elsewhere in the world, but whose property (usually a ship and its contents) had sailed into US jurisdiction, is now used by American law enforcement to take cash, vehicles, and whatever else they can haul away from people they think smell like weed.

The US government followed British law for its take on asset forfeiture. And yet, it was hardly ever used until the 20th century. Things ratcheted up during Prohibition, then faded away again. The New Prohibition -- the never-ending Drug War -- brought it back. And it's bigger than ever, despite the public's growing awareness that most of what's called "civil asset forfeiture" is just legalized theft.

The Supreme Court of the United States said one state's forfeiture program was unconstitutional. Citing the Eighth Amendment's protection against excessive fines, the Court said a program that allows cops to take a $42,000 vehicle from a person charged with a crime that only generates a $10,000 maximum fine is unconstitutional. This was criminal asset forfeiture -- there was a conviction involved -- but the ruling seemed to signal seizures where no criminal charges are brought would make any amount excessive.

The other recent ruling against forfeiture came from a federal judge in New Mexico. The Albuquerque Police Department's seizure of vehicles from drivers arrested for driving under the influence was called unconstitutional. It was also unlawful. A law passed by the state legislature banned this practice, but the PD didn't actually stop until after this ruling.

So, asset forfeiture continues pretty much unabated. Fortunately, there's been another ruling handed down that says pretty much everything about civil asset forfeiture is unconstitutional… in multiple ways. The downside is that, for now, it only affects part of one state.

A South Carolina circuit court judge in Horry County has ruled the state's civil asset forfeiture law unconstitutional, in violation of the U.S. Constitution's Fourth, Fifth and 14th amendments.

While the decision by 15th Circuit Court Judge Steven H. John doesn't set precedent beyond his courtroom, it could set the table for a state appellate court to determine whether South Carolina needs to enact reforms to its law.  

South Carolina's asset forfeiture programs are definitely in need of reform. Troopers camp on outbound highways to shake down drivers for cash. Cops respond to reports of crime by looking through victims' houses for any contraband that might excuse walking off with their cash. In one case, cops searched the house of a murder victim and helped themselves to $1,700 they found while looking for evidence of the crime they could hardly be bothered to investigate. Then they moved forward with the forfeiture, sending the notice of the PD's claim to the murder victim.

The decision [PDF] doesn't pull any punches. Judge John can't find anything he likes about the state's forfeiture programs. First up, it's the Eighth Amendment, which -- as incorporated by South Carolina's Constitution -- forbids excessive fines. Here, the judge draws the line the Supreme Court of the United States didn't: forfeitures without convictions makes any seizure excessive. [emphasis in the original]

This Court finds that South Carolina's forfeiture statutes violate both the federal and South Carolina constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

[S]outh Carolina's forfeiture statutes would allow law enforcement to seize millions in assets from an individual when the maximum fine authorized by law is minimal or when no crime has been committed at all. This unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed -- indeed, without evidence proving that the individual committed an offense -- compels this Court to find that the statutory scheme is unconstitutional and must be invalidated…

The Fifth and Fourteenth Amendments are violated by the burden shifting that occurs during forfeiture proceedings. This forces citizens to prove the seized property was acquired through legal means while only asking the government to show courts there's a small possibility it's correct in its assumptions of illegal origin. The entire process is backwards. Any system that allows the government to take property from individuals without even charging them with a crime wreaks havoc on the due process supposedly guaranteed by the Constitution.

But that's not the only violation of these rights. The judge points out that the perverted incentives forfeiture programs create do further damage to the Constitution.

Forfeiture programs in South Carolina have an unconstitutional incentive to prosecute forfeiture cases because, in practice, these programs set their own budget and can spend forfeiture funds in any amount and on any items that they choose, including recurring expenses, and without any meaningful oversight. "Thus, there is a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain' -- the more revenues they raise, the more revenues they can spend."

Because the revenues generated by the forfeiture programs are used to pay the expenses of the forfeiture programs, to justify the salaries of forfeiture employees, and to maintain a level of discretionary spending that would not otherwise be available to the agencies involved, enforcement personnel have an institutional financial incentive to vigorously pursue forfeitures regardless of the merits of the action.

On top of that, there's the quasi-judicial process, which is designed to efficiently separate people from property cops have seized from them. That's another string of Fifth and Fourteenth Amendment violations.

Under S.C. Code the seizing agency is required to file a forfeiture action within a reasonable time of the seizure. The statute does not define a reasonable time. The law permits a seizure without a warrant if the seizure is made as incident to arrest or if probable cause exists to believe that the property was used in violation of the drug laws… The statute does not have a provision for any type of pre-seizure or post-seizure hearing to determine if probable cause exists… [T]he law does not provide for any judicial review or judicial authorization prior to or subsequent to the seizure.

In practice, many seizures under South Carolina's forfeiture laws are not followed up by the filing of a forfeiture action, leaving many defendants with the choice of retaining an attorney to file a civil action against the state or simply allowing law enforcement to keep their money or property.

Because the statutes do not require a pre-seizure or post-seizure hearing, S.C. Code 44-53-520 and S.C. Code 44-53-530 do not comply with the due process clause of Article 1, Section 3 of the South Carolina Constitution or the Fifth and Fourteenth Amendments of the United States Constitution.

Judge John pitches a shutout. Asset forfeiture in almost any form is unconstitutional. Civil asset forfeiture in any form is unquestionably unconstitutional. Where the government chooses to take this from here will be interesting. Does it take the loss and limit the damage to this judge's courtroom, meaning it will have to hope any forfeiture proceedings it engages in are routed around this new damage? Or does it challenge the ruling and risk having this spread across the state? If the agencies affected are greedy enough, they might just act against their own interest. And that could be good news for South Carolinians.

Filed Under: 14th amendment, 4th amendment, 5th amendment, asset forfeiture, civil asset forfeiture, legalized stealing, police, south carolina

Your Money Or Your Life: Louisville Cops, Prosecutors Dropping Hefty Trafficking Charges In Exchange For Seized Cash

from the participation-trophies-for-all-drug-war-participants dept

Law enforcement agencies like to portray asset forfeiture as an important weapon in the Drug War arsenal -- one capable of toppling cartels and kingpins. Every so often, a large amount of cash and drugs is trotted out in front of reporters as evidence of this claim.

The reality is much, much different. For all intents and purposes, civil asset forfeiture is a government crime of opportunity. Any search that yields cash is a win for the agencies that profit from the seizure, even when there's no evidence the cash taken has any link to criminal activity. Pretextual traffic stops, knock-and-talks, stop-and frisk programs… all of these have the potential to turn everyday police work into something profitable.

WFPL's examination of the Louisville (KY) Metro PD's asset forfeiture paperwork shows the agency isn't really targeting drug traffickers and criminal organizations with its seizures. It's just lifting money from whoever it can, like people who've done nothing more than produced an offensive odor. (You are not misreading that sentence.)

Theron Carson and his friends were smoking weed and playing video games when the police showed up at his door.

It was 1 a.m., and the officers told Carson someone complained about the smell. The quickest resolution of the problem, they told Carson, was to allow them to search his Newburg apartment.

After police found his weed and his digital scale, they emptied his wallet. Then they charged him with drug trafficking.

Carson, now 24, says he is not a drug dealer. The $1,200 police took was earned legally, he said, and a mix of rent money, bill money and cash he and his girlfriend socked away in preparation for their daughter's birth.

Carson wanted the money back. Prosecutors offered him a deal that would allow him to plead to a misdemeanor… but only if he surrendered all of the cash.

This is standard operating procedure for the LMPD and the prosecutors it works with. Any cash seized is treated essentially as a bribe arrestees didn't know they were offering. In 25% of the cases examined, charges were dropped in exchange for the LMPD keeping the money.

Local prosecutors pretend the money is not a motivator. They're apparently putting alleged criminals back on the street (minus their cash) because they're just so great at prosecutorial discretion... I guess.

Jefferson County Commonwealth’s Attorney Thomas B. Wine said in an interview with KyCIR that losing cash is the “cost of doing business” if you’re caught with drugs and money, regardless of how the case is resolved.

“To somehow suggest that money is going to make a difference for any of us, at least here on the prosecution side, is ridiculous,” Wine said. “It’s not worth it for the prosecutors that I work with.”

So. Much. Discretion.

Wine estimates nearly 98 percent of cases his office prosecutes are settled with a plea deal.

But no profiting from cash grabs. No sir.

Kentucky law dictates that the police department keeps 85 percent of what it seizes, and the rest goes to the state’s prosecutors.

The LMPD seizes nearly $1 million in cash per year. It takes a while to add up when cops -- utilizing their training and expertise -- are able to turn almost anyone into a "drug trafficker" for the purposes of relieving them of their cash. According to WFPL's investigation, almost 40% of the seizures involved less than $1,000. And yet, officers taking property from arrestees tend to describe any amount of cash as "large" to better fit the drug trafficking narrative being pushed to create charges significant enough to be used as leverage against defendants and their natural desire to be reunited with their seized funds.

Police stopped a man in January 2017 for failing to use a turn signal while leaving “a high narcotics area,” according to an arrest citation. The officer reported smelling marijuana but didn’t find any; instead, a search netted a needle loaded with suspected meth, two pills and a “large amount of money”: $231.

An LMPD officer arrested a man suspected of selling synthetic marijuana at a west Louisville gas station in March 2017. In the arrest citation, the officer noted the man possessed a “large amount of lower denomination bills” in his wallet. The “large” amount of cash officers seized: $33.

These are the people prosecutors ring up on drug trafficking charges. And these are the ones whose cash they take to secure plea deals for lesser charges. Even then, the deliberately-broken system still doesn't work. The $33 kingpin listed above lost his cash and was convicted of drug trafficking.

One more data point: the LMPD's drug dogs are only "right" half the time.

In an analysis of 139 searches since Jan. 1, 2017, in which a dog indicated that drugs were present, 45% turned up no narcotics.

Cops don't know the drug dog is wrong until after the search is completed. The drug dog is really there to give officers permission to perform a warrantless search. On the dog green lights the search, anything discovered can be seized by officers, including whatever cash happens to be in the car or on the driver. A drug dog is a mobile warrant exception.

Programs where random citizens are relieved of cash just because they happen to be in possession of small amounts of drugs isn't going to stop the flow of drugs. They'll continue to flow as freely as citizens' cash into the accounts of the PD and prosecutors. No one's in any hurry to give up this revenue stream, even if law enforcement resources would be better used elsewhere.

Filed Under: asset forfeiture, asset seizure, cash, civil asset forfeiture, dropped cases, legalized theft, louisville, money, prosecutors

Ninth Circuit Upholds Its Previous Declaration That Cops Stealing Your Stuff Doesn't Violate The Constitution

from the and-cops-are-still-not-on-notice-they-can't-just-steal-stuff dept

Earlier this spring, the Ninth Circuit Appeals Court basically said it's okay for cops to steal property from citizens. This isn't because stealing is okay. It isn't. It's illegal. It's that stealing someone's possessions after they've been seized with a warrant doesn't violate the Constitution.

In this case, officers, who were engaged in an illegal gambling investigation, raided a couple's home, walking away with far more property than they officially said they did:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

Despite it being apparently obvious that being illegally stripped of personal possessions would interfere with a person's direct interest in the property they no longer have, the court extended qualified immunity to the officers. It reasoned that theft, while illegal, isn't unconstitutional, even when it's the government stealing from citizens.

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

The Ninth Circuit then withdrew this opinion, suggesting it may have had second thoughts about allowing officers to engage in theft so long as they have a warrant. It needn't have bothered. The superseding opinion [PDF] changes nothing. It points out that only one other circuit has reached the conclusion that theft by law enforcement officers violates the Constitution, but that opinion was unpublished, which means it simply doesn't count.

Since there's no precedent out there in the federal court system, the Ninth isn't going to go out of its way to create some.

We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment. The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).

Not addressing it now means having to write ridiculous paragraphs like this in order to prevent officers from being sued for stealing stuff during searches.

We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”

I'm pretty sure the officers knew it was wrong to steal. It's a thing pretty much everyone knows. That they wouldn't have been "on notice" that it violated the Constitution seems almost beside the point. But since the officers raised a qualified immunity defense, we're left with this absurd outcome.

Appellants have failed to show that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim.

The court recognizes what it's doing. But it claims to be bound by [checks notes] lack of precedent, which makes this footnote's recognition of the obvious especially meaningless.

Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong. We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.

Unfortunately, this closing statement is still true.

Not all conduct that is improper or morally wrong, however, violates the Constitution.

But when the conduct involves government employees illegally depriving people of their belongings, it would seem to violate the right to be free from unreasonable searches and seizures. The search may be protected by a valid warrant, but making off with property that isn't targeted (or even present on the inventory sheet) sure sounds like an unreasonable seizure.

Filed Under: 4th amendment, 9th circuit, asset forfeiture, civil asset forfeiture, police, qualified immunity

Former Law Enforcement Officer Displays His Ignorance Of The Law In Civil Forfeiture Article

from the ignorance-of-the-law-gets-you-a-sweet-position-on-the-nightly-newscast dept

If you're going to be touted as an "expert," the very goddamn least you can do is not make people stupider. May I present to you "Trooper Steve," the resident "traffic safety expert" for ClickOrlando.com.

He comes highly-touted. None other than the Orlando Sentinel called him… well, a "traffic safety expert." Here's the headline:

Former FHP Trooper Steve Montiero brings wealth of knowledge as News 6 traffic safety expert

Underneath the video announcing this triumphant hiring is a sentence that makes my head ache terribly:

Montiero gained fame with the Florida Highway Patrol as a Public Information Officer…

It's really weird that anyone would "gain fame" as a law enforcement officer. Sure, his position was more public-facing than most, but let's not start building a statue in his honor yet.

Here's a bit from his bio at ClickOrlando. [Please hold your vomiting until the end of the quote.]

A Central Florida native and decorated combat veteran, Montiero comes to the station following an eight-year assignment with the Florida Highway Patrol. While there, his responsibilities included patrolling Osceola, Orange, Brevard, Lake, Seminole and Volusia counties, along with the Orlando area of the Florida Turnpike. He was later assigned to the Florida Highway Patrol Motorcycle Unit, where he began doing public speaking engagements and found his passion for community involvement.

From that experience, he became the face of FHP in Orlando. Lt. Kim Montes took Steven under her wing and made him assistant Public Affairs Officer.

Over the last several years, he has become known across the Sunshine State as “Trooper Steve.” He’s spent his time doing everything from corporate events to interviews on WKMG, to just hanging out with kids in hopes of spreading the word about safe-decision making in hopes of saving just one life.

Why am I being so harsh on Trooper Steve? Well, it's a few things. First and foremost, his leap from law enforcement officer to "traffic safety expert" assumes he actually knows how to keep traffic safe. The thing about cops is they are under no obligation to keep the public safe. As the occupation name makes clear, they are there to perform law enforcement, not keep drivers safe. If the two happen to align occasionally, everyone wins. But LEOs have no "duty of care."

More than that, touting someone as an "expert" tends to lead viewers and readers to believe this person knows what the fuck they're talking about. But as this recent column by "Trooper Steve" painfully proves, police PR reps make for terrible "experts."

The question is fairly innocuous: are there any safety tips Trooper "Traffic Safety Expert" Steve could offer travelers roaming around the country with cash in their possession?

Martha, of Champions Gate, asked, “Is there anything I should know when carrying large amounts of cash in the car?

Everything goes off the rails immediately.

Well if you’re up to no good and get stopped by the police and have large amounts of cash on you, you’re going to have something to worry about. Civil asset forfeiture act requires you to show proof of cash when law enforcement is conducting an investigation.

Anything around $5,000 or more you should always have some type of paperwork showing where that money has come from, legally. This is to eliminate the idea that this money was earned or given during criminal activities for which you may be investigated.

First and fucking foremost, there is nothing illegal about cash. Cops presume there is because it puts money directly in the pockets of cops. Civil asset forfeiture tends to benefit the agency performing the seizure, so cops (and troopers) have every incentive to view any amount of cash as suspicious.

Trooper Steve draws the line at $5,000. It's an arbitrary line. Law enforcement officers will gladly seize amounts less than that because they're allowed to keep 85% of everything they seize.

But -- either due to stupidity or as a favor to his law enforcement buddies -- "expert" Trooper Steve shifts the burden of proof to drivers. That is not the law. The law -- following some minimal reform efforts -- lays the burden exactly where Trooper Steve says it doesn't.

Cash seizures still won’t need to be preceded by an arrest, though under the new law, forfeiture of any property won’t be made permanent unless law enforcement can prove “beyond a reasonable doubt” that it is linked to a crime. That’s the same standard of proof required for a criminal conviction.

So, it is not up to drivers to prove the cash they have on them is legit. It's up to cops. Of course, this won't stop a seizure, but at least the law says the burden of proof is on law enforcement. Supposed "expert" Trooper Steve says it isn't. He is making people stupider. And perhaps conveniently so, because while you can take a cop out of the force, you can't take the force out of the cop.

Do better with your hiring, ClickOrlando. And clean up after your repurposed public servants when they fuck up. Thanks.

Filed Under: asset forfeiture, cash, civil asset forfeiture, florida, florida man, police, steve montiero