Data From Court Documents Shows Texas Law Enforcement Playing Small-Ball Forfeiture, Not Doing Much To Stop Drug Trafficking

from the because-of-course-this-is-what-the-data-would-show dept

Journalists digging into the numbers behind vague forfeiture reports have uncovered more unsurprising details about the practice. Since the state of Texas doesn't require reporting of anything more than overall profits from forfeitures, reporters at the Texas Tribune did it the hard way. Reading through thousands of pages of court filings, the paper was able to tease out the granular detail law enforcement agencies don't like the public seeing.

What the Texas Tribune uncovered is exactly the reasons asset forfeiture is both problematic and incredibly popular with law enforcement agencies. Cop shop PR officers may hold press conferences to announce things like the $1.2 million in cash seized from a traffic stop, they're very quiet about the day-to-day work of forfeiture. The reality is the $50 million a year taken through forfeiture in the state of Texas is composed of hundreds of very small cash seizures.

• Half of the cash seizures were for less than $3,000. In Harris and Smith counties, more than two-thirds were under $5,000.

• About two of every five forfeiture cases started with a traffic stop.

• Many cases were connected to possession of small amounts of drugs. In Smith County, a woman’s 2003 Chevrolet Trailblazer was seized after police found half of a gram of suspected methamphetamine and a partially-smoked blunt in the car.

• In nearly 60% of the cases, people didn’t fight their seizures in court at all, resulting in judges turning over the property to local governments by default.

• Two of every 10 cases didn’t result in a related criminal charge against the property owner or possessor; in Webb County, more than half didn’t.

• And in about 40% of the cases, no one who had property taken from them was found guilty of a crime connected to the seizure.

Small seizures work out best for law enforcement. The cost of fighting the forfeiture usually outpaces the value of the seized property. This leads directly to the 60% default rate observed by the Texas Tribune. Bypassing criminal charges reduces the amount of time police and prosecutors have to spend processing the case, increasing the profitability of the seizure.

Even in the case of the $1.2 million seizure, no criminal charges were brought. Prosecutors claimed there was no criminal act to pursue since the driver claimed he was unaware of the cash officers found hidden in his trailer. And, under this deliberately-limited scope, there isn't an obvious criminal act the driver could have been charged with. But instead of trying to locate the source of the money assumed to be tied to illegal activity, law enforcement kept the money and presumably allowed a drug operation to continue mostly unimpeded.

The large forfeitures are easier to defend. It not tough to imagine the sudden loss of over $1 million causing at least some disruption in the drug distribution chain. But when cops are taking whatever cash they can find on anyone they pull over or arrest? It's a lot tougher to justify. But prosecutors will still try:

Angela Beavers, the lead civil forfeiture prosecutor for the Harris County District Attorney’s Office, said smaller seizures are common when police bust street dealers, who are an integral cog in drug trafficking organizations.

“Why would we allow the street level dealers to profit from their crimes? These are the dealers that ruin communities and families,” she said in an email.

But when the numbers are examined, these words ring hollow. It seems law enforcement cares more about the money being made by selling drugs, than the drugs themselves -- when the drugs would seem to be more instrumental to "ruining communities and families."

“I-35 is basically your main artery into the city from the rest of North America,” said Joe Baeza, a spokesperson for the Laredo Police Department. “We’re the beginning of the yellow brick road here.”

He said a U.S. Border Patrol checkpoint inspects vehicles heading north into Texas, and local cops often keep an eye out for drug proceeds traveling south. Webb County agencies made two seizures — a 2012 Dodge Ram and a 2008 BMW 5-series — from northbound stops after finding drugs in both vehicles, compared with 16 cash seizures from southbound lanes.

Even in counties where convictions were tied to forfeitures, it's still small amounts of cash tied to small possession charges. The most abusive aspect of forfeiture may have been removed, but there's still no indication this law enforcement tool is being used to dismantle drug cartels and stem the flow of drugs into communities.

It's no wonder Texas law enforcement agencies have pushed back against forfeiture reporting requirements, as well as tying this practice to convictions. The numbers pulled directly from filings shows the practice is mainly used to enrich law enforcement agencies, one small seizure at a time. There's nothing in here that shows this is benefiting Texas residents in any way.

Filed Under: asset forfeiture, civil asset forfeiture, legalized theft, texas

UK Government's Latest Take On Asset Forfeiture Is Pretty Much 'You Can't Afford That!'

from the we'll-be-the-judge-of-that,-said-the-gov't-to-the-judge dept

The UK government has adopted a spin on asset forfeiture so brazenly abusive of citizens, American cops are probably kicking themselves for not thinking of it first.

Dutch law enforcement raised the bar for forfeiture-related audacity early last year when they promised to start taking the literal clothes off people's back if it didn't seem like they had the (legal) funds to afford high-end designer wear. Dutch officials said a lot of things about gaudy timepieces but made it clear shirts and pants might follow if deemed sufficiently expensive.

The UK has this beat. As Walter Olson opines for the Washington Examiner, the UK plan does away with all the comparative politeness of American asset forfeiture. There will be no fishing expeditions masquerading as traffic stops. There will be no pre-dawn raids predicated on tips by informants whose trustworthiness is only exceeded by their willingness to commit crimes using taxpayer dollars.

As Olson points out, all UK law enforcement needs to do is claim "You can't afford that!" in front of a sufficiently-credulous magistrate.

It's like, "Your papers, please," but for things you own.

Authorities in Britain have begun trying out a new police power called unexplained wealth orders under a law that took effect last year. The police go to a court and say you're living way above any known legitimate income. The judge then signs an order compelling you to show that your possessions (whether a house, fancy car, or jewelry) have been obtained honestly and not with dirty money. In the meantime, the boat or artwork or other assets get frozen, and you can't sell them until you've shown you obtained them innocently.

The entire burden of proof resides on the UK resident the government has accused of living beyond their means. Don't have receipts? Well, I guess the government gets to keep your stuff.

The origin of this stupid law is the sort of thing that conjures calls for the guillotine from the rabble.

The first person named as a target of the law was Zamira Hajiyeva, whose story could make even an oligarch blush, assisted by a small fortune in purchases from Harrods cosmetics and perfume counters. Hajiyeva's husband is serving time after being convicted of extracting at least $100 million from Azerbaijan's state-controlled bank, of which he was chairman. She's fighting extradition to that country herself.

In the meantime, her possessions include a £12 million London house and a golf course on the outskirts. Details of Hajiyeva's wild Harrods spending sprees were neatly captured for authorities and readers by the store's loyalty card program. They included a £1,190,000 Cartier diamond ring and tens of thousands at a Godiva chocolate shop, adding up to $20 million over a decade. The high-end London store reserved two bespoke parking spots for her. She used at least 54 credit cards, many issued by the state-controlled bank her husband ran.

I know, right? But government officials might want to remember it wasn't just the filthy rich that ended up under the blade. It was also members of the ruling class, including the inbreeders at the top wearing crowns.

There are some caveats:

First, there has to be some suspicion the person whose property is being targeted is suspected of violating a crime. It's not a very high bar but it's something. Second, this power is being handed over to tax collectors, so it's not just suspected links to violent criminal activities being utilized.

As Olson points out, the definition of "serious crime" in the UK covers such innocuous activities as running an unlicensed gambling operation, even if your gambling site pays all winning bets and otherwise operates as least as cleanly as the licensed ones do.

All caveats aside, this is fucked up. It doesn't require the government to prove anything about a person's wealth or criminal activities. It allows the government to freeze assets and, eventually, keep them, if the person accused can't come up with proof their possessions were purchased with clean money. Considering the meandering flow of cash around the world (and the intricacies of international banking), who's going to have acceptable evidence on hand when the government starts seizing property?

Filed Under: asset forfeiture, uk, unexplained wealth

Study Shows Asset Forfeiture Doesn't Fight Crime Or Reduce Drug Use

from the drug-war-what-is-it-good-for dept

The lies law enforcement tells about civil asset forfeiture are just that: lies. They may not be intentional lies in some cases. Many law enforcement officials may actually believe the bullshit they spill in defense of taking property from people without convicting them of crimes. But that doesn't change the fact that it's bullshit.

If law enforcement was serious about crippling drug cartels, they wouldn't be watching the roads leading out of their jurisdictions for drivers to pull over and shake down for cash. They'd be watching roads leading into the state to seize the drugs before they can be sold. But that's not how it's done. Drug busts are rare. Cash seizures -- especially small ones -- happen all the time.

When a Nashville television news team followed police officers working I-40 as part of a highway interdiction task force not unlike South Carolina’s Rolling Thunder, it found officers did not work the east- and westbound lanes equally. Rather, they seemed to prefer the westbound side even though they were more likely to find drugs on the eastbound side, as smugglers transported them to Nashville and other cities to the east. A possible explanation for this observation is that officers knew they were more likely to find drug money on the westbound side, as smugglers transported it back to Mexico or the West Coast. Records confirmed officers made 10 times as many stops on the westbound side as they did on the eastbound.

You'll notice law enforcement never brings stats to the discussion. All officials bring are talking points. Most states don't require any level of reporting on seizures and the law enforcement spending that flows from these. The opacity has allowed a law enforcement tool to become an unaudited revenue stream, providing agencies with all the incentive they need to turn traffic stops into lucrative fishing expeditions.

Fortunately, those opposed to the abusive practice will have even more facts to work with, thanks to a new study [PDF] by Dr. Brian D. Kelly of the Institute for Justice. Millions of dollars flow into law enforcement agencies every year from forfeiture, but this has yet to provide the public with any return on the forced investment.

More equitable sharing funds do not translate into more crimes solved. This suggests that despite claims forfeiture turns criminals’ cash into more resources for law enforcement, the additional revenue is not improving overall police effectiveness in crime fighting.

More equitable sharing funds also do not mean less drug use, even though proponents argue forfeiture helps rid the streets of drugs by financially crippling drug dealers and cartels.

When local economies suffer, equitable sharing activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in equitable sharing seizures.

That's two popular arguments directly disproven. The first one -- that forfeiture allows agencies to purchase the tech and tools they need to fight crime successfully -- is disproven by the lack of results. Sure, agencies are loading up on equipment and spy gear, but clearance rates on criminal investigations aren't tracking with the increased cash flow. Using law enforcement data, the IJ can't find any link between asset forfeiture and law enforcement efficiency.

Results suggest forfeiture does not help police solve more crime. The results of these analyses were statistically insignificant at conventional levels, suggesting additional forfeiture revenue does not translate into more crimes solved. But even if the results were significant, the relationship between forfeiture and crime clearance would be vanishingly small. For example, the LEMAS [Law Enforcement Management and Administrative Statistics] data for municipal police suggest a $1,000 increase in equitable sharing funds per officer would mean solving just 2.4 more crimes per 1,000 reported offenses. So if an agency’s clearance rate were, say, 270 per 1,000 offenses, receiving $1,000 more in equitable sharing funds per officer would mean increasing the clearance rate to just 272.4. A $1,000 increase in funds per officer would be substantial—total equitable sharing averages less than half of this—yet such a windfall would make only a minor difference. Moreover, such tiny improvements in clearance rates would diminish as forfeiture revenue increases; for example, the first $500 per officer in a given year would have a greater impact than the second $500 per officer. These results suggest claims about forfeiture’s crime-fighting importance are, at best, overstated.

The second talking point -- that forfeiture cripples drug dealers and cartels -- also has no factual basis. Again, the numbers contradict the claims. Using the National Survey on Drug Use and Health (NSDUH) carried out by the Substance Abuse and Mental Health Services Administration (SAMHSA), the IJ found no correlation between asset forfeiture and reductions in drug use, suggesting drugs are still just as easy to obtain.

From 2002 through 2014, the survey underwent no major relevant changes, making it possible to directly compare results over time. This feature allowed me to explore whether increases in equitable sharing proceeds received by agencies within a particular NSDUH region were associated with reductions in drug use in those same regions. I controlled for police agency staffing, which could affect police effectiveness, as well as for demographic and economic factors sometimes associated with drug use: the proportion of the population age 15–24, the minority proportion of the population and the unemployment rate. The four NSDUH drug use measures I used were (1) use of any illicit drug in the previous year, (2) marijuana use in the previous year, (3) nonmedical use of prescription pain relievers in the previous year and (4) cocaine use in the previous year.

For none of these illicit drug use measures did I find increases in equitable sharing proceeds led to subsequent reductions in use. In short, to the extent forfeiture advocates hope increasing enforcement through forfeiture will reduce drug use, this does not appear to be happening.

What the report did find is something unexpected: the more financially-stressed an area is, the more likely it is law enforcement will make it worse. Forfeitures increase as unemployment increases, suggesting financially-strapped agencies are stepping up forfeiture efforts to make up for budget shortfalls.

In every case, I found that higher unemployment predicted more equitable sharing activity. For equitable sharing overall as well as for both joint operations and adoptions, the link between unemployment and both value of assets forfeited and number of assets seized was statistically significant. With respect to equitable sharing overall, a 1 percentage point increase in unemployment was associated with an 8.5 percentage point increase in the value of forfeited assets and a 9.5 percentage point increase in the number of assets seized…

The study confirms what's always been suspected: asset forfeiture directly enriches law enforcement agencies but provides zero benefit to the communities the agencies serve. That's the very definition of abuse. Cops are using citizens as ATMs while drug cartels thrive. The data clearly shows the only negative impact of serious asset forfeiture reforms will be an increase in complaints from law enforcement officials.

Filed Under: asset forfeiture, crime, drugs, legalized theft

Prosecutor On Forfeiture Reforms: Making Us Prosecute Drugs Cases Will Make It Harder To Prosecute Drug Cases

from the catch-22-is-non-fiction dept

I thought I had read the worst defense of civil asset forfeiture when I read a former Michigan police chief's argument against a conviction requirement being instituted in his state. Former Police Chief Robert Stevenson's argument was basically this: a conviction requirement makes it too hard for cops to take property from people without proof.

Law enforcement will be severely handicapped if state lawmakers succumb to the misconception that no forfeiture should take place without a conviction on proceeds under $50,000.

[...]

Drugs may not be present, but everything else confirms and indicates drug trafficking, i.e., ledger books, scales, pre-recorded narcotics buy funds and packaging materials. In this particular scenario, as well as a multitude of others, the police and prosecutors could not establish a case to seize anything if Michigan adopts the $50,000 threshold.

All this evidence and nothing to do with it, I guess. Like many in the law enforcement field, Stevenson clings to the myth that robbing random people at gunpoint somehow cripples drug cartels. This belief is backed by far less evidence than the long list of stuff Stevenson claims can't be cobbled into a successful prosecution. We're more than 40 years deep into a War on Drugs and the only thing that's changed for the positive is the public's attitude towards civil asset forfeiture.

Michigan's legislature is considering adding a conviction requirement for forfeitures under $50,000. Opponents of property rights and due process keep crawling out of the woodwork, offering up increasingly nonsensical defenses of forfeiture. But nothing is stupider than this prosecutor's objection:

”Since a conviction is now required, it will make it extremely difficult to prosecute high level drug dealers,” Wayne County Prosecutor Kym Worthy said via email.

REQUIRING PROSECUTORS TO PROSECUTE DRUG DEALERS WILL MAKE IT HARDER TO PROSECUTE DRUG DEALERS.

This kind of reasoning suggests the real problem with closing the deal, prosecution-wise, might be the prosecutor's arguments.

It doesn't get worse from there. But it certainly doesn't get any better. Allowing Worthy to expand on this theory does not bring enlightenment or clarification. It just makes the theory bigger and dumber.

“Often in these cases, witnesses are intimidated to the point that they do not show up for trial, sometimes losing their lives because of the retaliation,” Worthy said. “It is our fear that this will get worse now that drug dealers know that if there are no witnesses, there will be no conviction and they can get their property back.”

How in fuck do you draw the line from "taking cash from some dude cops pulled over" to "witness intimidation?" This is the brilliant legal mind handling prosecutions for Michigan's largest city. All this says is that forfeiture was never about keeping drugs and drug dealers off the street. It was always about the cash. We know this, but cops and prosecutors will never say it out loud. Worthy's attempt to portray almost-suspicionless cash seizures as leverage in prosecutions the government NEVER PLANS TO PURSUE is inadvertently transparent.

The only argument that could be worse than Worthy's defense is the truth: cops and prosecutors prefer taking property because it's easier and it enriches them personally. But we should expect nothing less (nothing more?) from a prosecutor who once asserted there's a link between real-life and video game violence, stating "no one" could "convince" her otherwise, no matter what evidence they presented. Seems like evidence and assertions are never in the same place when Worthy's in charge. I can see why she's so opposed to doing a job she's clearly not qualified to perform.

Filed Under: asset forfeiture, drugs, kym worthy, legalized theft, michigan, prosecution, wayne county

Government Generously Hands Back Two-Thirds Of The $626,000 It Stole From Two Men Driving Through Missouri

from the bullshit-on-top-of-bullshit dept

A case out of Missouri is highlighting yet again the stupidity and vindictiveness that defines civil asset forfeiture. In January 2017, law enforcement seized $626,000 from two men as they passed through the state on their way to California. According to the state highway patrol, the men presented contradictory stories about their origin, destination, and the plans for the money found during the traffic stop.

The complaint filed against the money made a lot of claims about the government's suspicions this was money destined for drug purchases. Supposedly evidence was recovered from seized phones suggested the two men were involved in drug trafficking, utilizing a third person's money. Despite all of this evidence, prosecutors never went after the men. They only went after the money.

Records searches of both state and federal courts did not identify any criminal charges against Li, Peng or Huang.

Even the speeding that predicated the stop (in which a drug dog "alerted" on the rental vehicle that contained no drugs) went unprosecuted.

This is where the stupid begins: alleged drug dealers allowed to continue their drug dealing by state and federal agencies more interested in the men's cash.

But it gets stupider. This was offered up in the complaint against the seized money as evidence of the men's criminal activities.

Authorities noted in the complaint he lived “9 houses” away from the site of a residence where drug transactions were occurring and a contact in his phone was recently the subject of a civil forfeiture action.

That's some mighty fine evidence. If you happen to live in the same neighborhood as a known criminal, I guess you're a criminal, too. That's just how society works, ladies and gentlemen. Move to a better neighborhood if you don't want to be lumped in with your worst neighbors.

The other part is stupid, too. According to this line of thought, if law enforcement has stolen cash and property from someone in your Contacts list, you must be a criminal. Only criminals would associate with people whose stuff has been taken by the government but have never been convicted of criminal activity.

Also apparently suspicious: traveling and not attempting to avoid mandated IRS reporting.

Peng had a number of bank transactions the complaint states were “highly unusual” including multiple deposits and wire transactions for about $100,000 each. Financial records also showed three trips between Chicago and California and one from Chicago to New York in a three-month period between November 2016 and January 2017.

You just can't win. Keep deposits too low (under $10,000) and the federal government thinks you're engaged in structuring. Keep them well above the mandatory reporting mark and you're probably a drug dealer.

It appears the agencies involved in this seizure didn't think they had enough real evidence to follow through on this forfeiture. More than two years after the $626,000 was seized, the government is returning it to its rightful owners. That's where the vindictiveness comes in. The government hasn't won a criminal or civil case against any of the people involved, but it's still going to keep a third of the cash just because.

U.S. District Attorney for Western Missouri Tim Garrison, in a settlement agreement dated April 25, wrote the government will return almost $418,000 to claimant Lu Li, of Chicago, and will keep almost $209,000.

Even when the government loses, it still wins. One-third of $626,000 remains in the hands of a government that couldn't prove anything it alleged, even in a civil case where the standard of proof is considerably lower.

In the end, we have three people short $200,000 and a government that can't competently prosecute people or their money, even when the latter can't defend itself in civil forfeiture litigation. [waves American flag with one blue stripe frantically while humming 'The Ballad of the Green Berets" for some reason]

Filed Under: asset forfeiture, cash, doj, forfeiture, legalized theft, lu li, missouri

Former Police Chief Says Conviction Requirement For Forfeitures Makes It Too Hard To Take Cash From People

from the can't-have-us-police-doing-actual-police-work dept

One of the worst defenses of civil asset forfeiture has been penned by retired police chief Robert Stevenson for the Michigan news site, the Bridge. It's written in response to two things: pending forfeiture reform bills in the state legislature and the Supreme Court's Timbs decision, which indicated forfeiture may fall on the wrong side of the 8th and 14th Amendments.

Michigan definitely needs to overhaul its forfeiture laws. Law enforcement claims it's dismantling drug cartels, but a look at the state's forfeiture stats shows cops are just piling up low ball seizures to create a suitably impressive total. Cash seizures are routinely below $1,000. Vehicle seizures are also popular with Michigan cops, but the average value of vehicles taken from alleged drug dealers also falls below the $1,000 mark.

It's these tiny seizures -- the ones not worth fighting in court -- that the state legislature is trying to curb. It's hoping to implement a conviction requirement for any forfeiture under $50,000. Chief Stevenson says this would let the drug dealers win. But beyond using some florid language to flesh out a tiny parade of horribles, Stevenson cannot actually say why this conviction requirement would harm drug enforcement efforts. He tries. Lord, how he tries. But there's nothing coherent in his defense of cops taking property from citizens just because.

First, Stevenson argues that cops should be able to take money they feel deeply in their hearts is derived from drug dealing even if it can't find any evidence linking the person carrying it to a crime.

Law enforcement will be severely handicapped if state lawmakers succumb to the misconception that no forfeiture should take place without a conviction on proceeds under $50,000. It is a dramatic misunderstanding that a conviction can be obtained in all drug cases. Drugs and proceeds are not always discovered together which makes obtaining criminal convictions in certain instances impossible. Linking civil asset forfeiture to a criminal conviction allows drug dealers to continue profiting from dealing death in our communities.

In the eyes of LEOs like Stevenson, cash being carried by people stopped by officers can only be the product of illegal activity. It's simply inconceivable anyone would carry cash in this day and age, apparently. This isn't conjecture on my part. Stevenson actually states that people carrying cash are legally obligated to explain its origin to cops.

That part comes in his second argument for forfeiture -- one that says even if cops have all the evidence they need to push for a conviction, they still should just be able to take the cash instead.

The $50,000 threshold found in this legislation simply means that drug dealers will transport money in sums of less than $50,000. The scenarios I fear involve finding suspects in a house or a car in possession of $49,000 in cash with no valid explanation.

There are two mind-blowing statements in this paragraph and they're both worth singling out.

Stevenson says people should have to explain their cash to cops. That's a really weird statement to make, considering previous forfeiture reform efforts raised the burden of proof for the state, not for the public. The public doesn't owe law enforcement a "valid explanation" for cash (and other property) it possesses. This is completely the wrong way around and it explains law enforcement's inherent resistance to conviction requirements. Cops want the cash, but they don't want to put in the work needed to link seizures to illegal activity. They want the burden of proof to rest most heavily on those whose property has been taken.

Then Stevenson says cops shouldn't have to pursue convictions to take cash even when they have enough evidence to support a conviction. These sentences resist parsing:

Drugs may not be present, but everything else confirms and indicates drug trafficking, i.e., ledger books, scales, pre-recorded narcotics buy funds and packaging materials. In this particular scenario, as well as a multitude of others, the police and prosecutors could not establish a case to seize anything if Michigan adopts the $50,000 threshold.

The proposed law would just determine which case needs to be established first. If cops have enough to establish a case for prosecution, it can move forward with trying to seize the cash. The only possible way this argument makes sense is if Michigan law enforcement is so inept it can't cobble together a prosecution using a shitload of evidence. If that's the case, Michigan law enforcement definitely needs to have convictionless seizures because that's the only way it's ever going to take possession of all this "unexplained" cash.

I'm sure Stevenson felt pretty self-righteous (and regular righteous, to be fair) handing this op-ed in. But the lack of logic displayed by his spirited, but incoherent, defense of the state's long-running "free money for cops" programs made more of case for reform than if he'd simply said nothing at all.

Filed Under: asset forfeiture, civil asset forfeiture, michigan, police, robert stevenson

Judge Rips Drug Task Force For Going On Asset Forfeiture 'Shopping Sprees'

from the tough-to-tell-who-the-real-criminals-are-in-this-case dept

A Pennsylvania judge has delivered an earful to the York County Drug Task Force and its handling of property forfeitures. Christopher Hawkins, represented by Korey Leslie (who was kind enough to email me the ruling the York Dispatch couldn't be bothered to post with its article), challenged the seizure of two vehicles and a bunch of electronics from his house. Hawkins was arrested after a controlled heroin purchase. There appears to be no question Hawkins participated in drug dealing. But that doesn't excuse the government's decision to take two cars and some TVs from him as "evidence."

Judge Craig T. Trebilcock doesn't like anything about the Task Force's seizures, since it appears to be more concerned with taking things with resale value, rather than property with an actual nexus to drug distribution. The opinion [PDF] repeatedly calls Task Force detectives out for their lack of credibility and the dollar signs continually dancing in their eyes. The Task Force originally seized four vehicles from Hawkins before returning two of them for a lack of drug nexus. But it still couldn't connect the two it kept.

Detective S. testified that the Dodge Neon and the Mercedes were kept by the police because "we thought there was clear and convincing nexus between drugs and those vehicles" However, no credible facts were provided by Detective S. to substantiate these conclusions. During cross examination. Detective S. indicated the vehicles did not play any role in the drug transactions on the 22nd or 23rd.

The only thing Detective S. offered as evidence of this drug nexus was a statement by Hawkins that he used the Mercedes to "meet people for money primary for drugs." But, as the court notes, this statement was not corroborated by any other detectives involved in the arrest and seizure, nor was it recorded in any fashion. The court, however, knows exactly why these two vehicles were seized, even if the Task Force members won't admit it.

Detective S. testified that there was no lien on either the Neon or Mercedes Benz, the apparent sole distinguishing factor as to why they were seized, instead of the other vehicles.

The detectives also couldn't offer a good explanation for the seizure of two flatscreen TVs from the house. One claimed Hawkins wasn't working, so he couldn't have purchased them with legal funds. Again, the court points out Hawkins offered proof of his employment with a temp agency and lived with his girlfriend, who had a full-time job. And again, the court knows the Task Force just took the TVs because it thought it could turn them into cash quickly.

[T]here was no factual evidence to support the conclusion that Mr. Hawkins (or another resident) could not legitimately afford a television being present in his home. The task force seized the property simply because it had resale value.

The judge also calls out the perverse incentives that have led to the task force appearing before him repeatedly to forfeit televisions, video game systems, and vehicles -- all without making much of an effort to tie these items to illegal activity.

Forfeitures… result in additional income streams to the very officers seizing the property, a source of concern to this Court.

The court notes that the state's forfeiture laws are Constitutionally sound. But not when they're applied the way the York County Task Force applies them. The court says the task force engages in "arbitrary" seizures that violate citizens' due process rights. Then Judge Trebilcock hammers the point home:

This case is being decided on the facts of this case alone. It is important to note, however, that overzealous forfeiture actions by the Drug Task Force in the time frame of this case have not been isolated in nature. Dozens of forfeiture actions are brought before this court each year. While the property seized may vary from case to case, with some cases involving automobile, firearms or other property, a disconcerting pattern is evident that Drug Task Force officers seize big screen TVs that are present in the property regardless of any link to drug money or illegal activity. In addition, they disproportionately seize all game systems and video games, present in the property. The decision as to which property to seize is driven, in the words of Detective S., by which property has resale value.

The Drug Task Force does not seize furniture or clothing, silverware, or other items that have low resale value. They focus upon items that have high resale value. That is not a problem in itself, until the police begin to ignore that there must be a nexus to drug dealing or drug money to seize those higher high value assets. [...] In this case the Drug Task Force personnel ignored the need for such a nexus and engaged in a shopping spree, for the benefit of their budget, based solely on the property's resale value.

The court goes even further than this. It suggests the Drug Task Force also uses these seizures to coerce confessions or plea deals from defendants. It says it may not have happened in this case, but the court is sure it has happened in the past. Going forward, the York Drug Task Force will be under the microscope every time it tries to forfeit property.

[I]n the absence of reform and a greater demonstration of responsibility in future Drug Task Force practices, this issue will remain to be decided to the voluntariness of plea deals, questions of double jeopardy, and the personal or institutional liability/culpability of those officers who seize private property unlawfully.

In the future, Trebilcock's court will also be requiring hearings for all forfeiture -- hearings that defendants will be allowed to attend and testify at on their own behalf, even if they're currently incarcerated. Trebilcock signs off his scathing opinion with this:

Taken in its entirety, the testimony of the officers in this case indicates that the police made the subjective assessment that the Defendant is too poor, absent drug dealing, to have nice possessions. This was nothing more than a hunch, unsupported by any investigative rigor, and clouded by an overzealous desire to forfeit the possessions.

Not enough judges are willing to go this far when criticizing law enforcement's abusive practices. This probably won't result in a come-to-Jesus moment for the Task Force, unfortunately. It may decide these drug cases now have a federal nexus and ask Uncle Sam to help them keep robbing people. But at least they know they're no longer welcome to pull this bullshit in Trebilcock's court, so it's a start.

Filed Under: asset forfeiture, christopher hawkins, pennsylvania

Arkansas Senate Unanimously Approves A Conviction Requirement For Asset Forfeiture

from the limited-good-news,-everyone! dept

Some more good news about asset forfeiture comes our way, courtesy of Lauren Krisai. It appears the Arkansas senate overwhelmingly agrees the abusive state of forfeiture it oversees cannot continue. The state senate unanimously passed an asset forfeiture reform bill that would institute a conviction requirement for seized assets, preventing law enforcement from policing for profit.

The bill would basically outlaw civil asset forfeiture in its current form, replacing it with criminal asset forfeiture. And it would prevent cops from using rinky-dink criminal charges to take property away from state residents.

There shall be no civil judgment under this subchapter and no property shall be forfeited unless the person from whom the property is seized is convicted of a felony offense that related to the property being seized and that permits the forfeiture of the property.

Unfortunately, it does contain a couple of loopholes. First, law enforcement can convert this back to civil asset forfeiture if it can show the person never responded to the civil complaint against their property. Tying this to a conviction requirement should make this tougher to exploit, seeing as a person dealing with a criminal complaint will probably be apprised of the state's desire to take their property.

Second, it still allows local law enforcement to take advantage of the federal government's equitable sharing program to bypass the new restrictions. The Tenth Amendment Center points out the state took a shot at closing this loophole with an earlier law. This is what the state's partially-closed loophole looks like:

(1) No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal entity for forfeiture under federal law unless the circuit court having jurisdiction over the property enters an order, upon petition by the prosecuting attorney, authorizing the property to be transferred to the federal entity.

(2) The transfer shall not be approved unless it reasonably appears that the activity giving rise to the investigation or seizure involves more than one (1) state or the nature of the investigation or seizure would be better pursued under federal law.

Given that most seizures are performed by "drug interdiction units" or whatever, exploiting the federal loophole is as easy as claiming the property seized is part of a larger drug cartel's operations. Almost every state drug charge has a federal equivalent, so if local cops don't want to pursue a conviction, they can give the feds a cut of the seizure to bypass any state-level conviction requirements.

As the Institute for Justice notes, Arkansas has some of the country's worst forfeiture laws. And this legislative attempt to close the federal loophole has had zero negative effects on local law enforcement's ability to turn vague claims about drugs into cop shop petty cash.

Arkansas law enforcement received $27 million in DOJ equitable sharing proceeds between 2000 and 2013, which equates to roughly $1.9 million each calendar year. And these proceeds have been increasing steadily over the years, from a few hundred thousand dollars a year in the early 2000s to over $3 million in 2013.

If Arkansas legislators really want to end forfeiture abuse, they'll also need to address equitable sharing. Until that loophole undergoes further restrictions, it will be business as usual in the state. Cops would rather have 80% of something than 100% of the nothing they'll get if they feel they can't obtain a felony conviction.

Filed Under: arkansas, asset forfeiture, convictions, due process

Auto Finance Company Sues Massachusetts City Over Its Unconstitutional Sale Of Seized Vehicles

from the money-v-power dept

An opponent of asset forfeiture has arisen from an unexpected place. Honda's finance division has taken the city of Revere, Massachusetts to court over the seizure and sale of a vehicle it still technically owned.

American Honda Finance Corp., based in California, alleged in its lawsuit filed Feb. 12 in U.S. District Court for the District of Massachusetts that its constitutional rights were violated when a Honda Civic was seized in 2016 by Revere's police department.

"Plaintiff brings this action to remedy a deprivation of its long-settled and fundamental rights to be free from unreasonable seizures and to due process of law under the United States Constitution," American Honda Finance Corp. said in its 13-page complaint.

The complaint [PDF] makes it clear the company thinks this is some bullshit: seizing and selling a vehicle that still belongs to the company holding the lien. Until the vehicle is paid off, Honda still owns the car. But Massachusetts law enforcement doesn't appear to care who owns the car so long as they get to profit from its sale. The narrative detailed in the lawsuit makes it clear zero effort was made to make the car's real owner aware of the city's plans for the seized car.

On or about November 2, 2016, HONDA obtained a purchase money security interest and lien in The Subject Vehicle.

On November 28, 2016, The Subject Vehicle was officially titled in the State of New York with Shanasia Hackworth recorded as the owner and HONDA recorded as the first priority lienholder.

On or about December 30, 2016, REVERE took possession and custody of The Subject Vehicle pursuant to REVERE’s police officers acting in the course of their duties as law enforcement officers.

On or about December 30, 2016, REVERE, through its police officers acting in the cause of their duties as law enforcement officers, and pursuant to laws enacted to further official state interests, directed Mario’s Service Center, Inc. to tow and detain The Subject Vehicle.

On or about December 30, 2016, Mario’s Service Center, Inc. towed The Subject Vehicle and retained The Subject Vehicle on behalf of REVERE as part of an “investigation.”

REVERE did not notify HONDA that The Subject Vehicle had been seized.

REVERE thereafter concluded its investigation. REVERE did not, thereafter, return The Subject Vehicle to HONDA or anyone else. Instead, REVERE authorized its agent, Mario’s Towing Service Center, Inc., to detain and dispose of the vehicle pursuant to Massachusetts G.L.c. 255, §39A.

REVERE did not notify HONDA that after the investigation ended that REVERE authorized Mario’s Towing Service Center, Inc. to detain and dispose of The Subject Vehicle.

REVERE did not ensure that its agent, Mario’s Towing Service Center, Inc., notified HONDA that REVERE had authorized detention and disposal of the Subject Vehicle.

On or about May 18, 2017, REVERE’s agent, Mario’s Towing Service Center, Inc., sold The Subject Vehicle and The Subject Vehicle was retitled through the Massachusetts Department of Transportation with HONDA’s lien not recorded on said title.

Under Massachusetts law the sale pursuant to Massachusetts G.L.c 255, §39A and subsequent retitling extinguished HONDA’s property interest in The Subject Vehicle.

At no time prior to the sale or retitling of The Subject Vehicle did REVERE or any person provide any notice to HONDA relating to The Subject Vehicle.

There's a genuine question of property interest in a vehicle whose title still resides with the financing company. This can't be the first time a company has complained about a vehicle of theirs being auctioned off without notice, but this is the first federal complaint I've seen directly challenging a state's seizure of vehicles from drivers who don't actually own the vehicles they're driving.

This was filed ten days before the Supreme Court held that certain forms of asset forfeiture violate Constitutional protections against excessive fines. Honda's complaint seems to anticipate the high court's displeasure with abusive forfeitures and pulls no punches in its description of the program the city of Revere participate in. (Emphasis in the original.)

Massachusetts G.L.c. 255, §39A effectuates the Commonwealth’s interest in enforcing traffic laws and in protecting the public from hazardous street conditions. The statute provides a means for the state to compensate private parties who assist the state by towing and storing vehicles at the direction of police. The statute has, however, fallen out of step with modern developments in constitutional law which confirm that a duly perfected security interest and lien in a vehicle is a constitutionally protected property right.

A program that takes property away from the property's true owner -- an entity completely disconnected from the underlying criminal activity/accusations -- appears to be a violation of the company's Constitutional rights, if not the greater protections given to property owners by the state's constitution. The suit alleges a host of violated rights, as well as conversion under state law, arguing the sale of the vehicle without notifying the lien holder is basically theft of Honda's property.

Is it going to take the deep pockets of pissed off corporations to finally make a serious dent in abusive forfeiture programs? It might. This case may be more tow-and-sell than most forfeitures, but the principle behind it -- the state depriving companies of their property without notice -- is identical. If this case adds to the judicial dialog on forfeiture programs, I'm all for it.

Filed Under: asset forfeiture, cars, leasing, massachusetts, ownership, theft
Companies: honda

Missouri Law Enforcement Is Dodging State Forfeiture Laws To Screw Schools And Keep Drugs Flowing Into The State

from the to-serve-and-protect-their-own-interests dept

The journalists at St. Louis Public Radio are the latest to dig into their state's asset forfeiture programs. Despite the state receiving a decent grade from the Institute of Justice for the controls it places on state-level forfeitures, the station found plenty of abuse thanks to the federal loophole, which allows law enforcement to bypass all the built-in protections legislators have enacted.

Missouri law around asset forfeiture contains some fairly strong protections. Civil asset forfeiture can only take place after a conviction or a guilty plea in a criminal case. In addition, the money is set aside for schools. The Institute for Justice, a libertarian-leaning legal advocacy group, gave Missouri a grade of B+, among the best in the country. In the federal system, however, no criminal conviction is required, and police departments can keep up to 80 percent of the money they seize.

Prosecutors like Tim Lohmar in St. Charles County make the decision whether to handle potential asset-forfeiture cases with state charges, or at the federal level. The vast majority of the time, Lohmar chooses the federal process.

This has resulted in a windfall of over $1 million for local law enforcement agencies. Thanks to federal adoption, the money train never stops, no matter what state laws require. If the forfeiture is tied to criminal charges, the money goes to local schools. Cops aren't fond of sharing, so only three of the 36 forfeiture cases processed by Lohmar last year included criminal charges for the person the cash was taken from.

The preference to grab cash, rather than drugs, has led to some completely nonsensical defenses of civil asset forfeiture.

“When you seize a thousand pounds of marijuana in the St. Louis area, you’re really not hurting the operations of a drug cartel in Mexico, because the cost to produce that thousand pounds is negligible in the grand scheme of things,” [State Rep. Justin] Hill said.

We're expected to believe cultivating and processing drugs is a zero cost effort but lost cash can never be replaced. It stands to reason that the production and sales of drugs aren't going to stop, so the seizure of a few thousand dollars from a random driver is also pretty "negligible in the grand scheme of things."

And we know cops don't actually care about stopping the drug flow. They allow the drugs to make their way into St. Louis and camp out on the roads leading away from the city to seize cash they believe resulted from the drug sales they can't be bothered to stop.

[Sgt. Carmello] Crivello, like most highway interdictors, focuses on the westbound lanes of the interstate, targeting cash, rather than drugs, that comes through Missouri in the eastbound lanes.

“The westbound, generally speaking, are the profits from the drug sales,” said Crivello in an interview, “... so stopping westbound (is) more likely to hurt drugs … (You) hurt the cartels more than you hit the pocketbooks.”

Repeating the same fallacy doesn't make it true. Law enforcement agencies like cash and the federal loophole that allows them to keep 80% of what they seize. What they don't like is the work that comes with actually dismantling drug cartels which, at some point, has to involve drug seizures and arrests, rather than pocketing cash and sending drivers on their way.

The state's law enforcement agencies have a chance to do some truly great things with forfeiture money. As was noted earlier, adding arrests to seizures routes funds to the state's public school system. Rather than be an active contributor to their communities -- both by funding schools and actually taking drug runners off the street -- cops are seizing cash and asking the feds to launder the proceeds so they can bypass local schools and any pretense of stopping the flow of drugs into the state.

Of the $19 million collected in asset forfeitures over the past three years, $340,000 has gone to schools. That’s less than 2 cents on the dollar. Most of the rest of the money went to law-enforcement agencies for new equipment, squad cars, weapons, ammunition and jail cells.

Legislators enacted reforms almost two decades ago. Law enforcement immediately found a way to circumvent these restrictions. For a brief moment a few years ago, the federal government closed the escape hatch. That has been reopened and it certainly won't be closing again while Trump is in office. Fortunately, state legislators are aware of what's happening and are attempting to close this loophole.

Missouri State Rep. Shamed Dogan, R-Ballwin, has tried unsuccessfully during recent legislative sessions to pass a reform measure that would reduce the number of forfeitures that go the federal Equitable Sharing route and thus circumvent state law. Opposition from law-enforcement groups has kept the proposal bottled up in committee.

Dogan is considering two forms of the bill. One would bar officers from sending forfeitures of less than $100,000 to the federal program. An alternative, more palatable to law enforcement, would set the cap at $50,000. In other words, the small seizures would have to comply with state law, while the big seizures could go the federal route.

Doing this would force state cops to play by the rules set up in 1991 -- the ones that gave the state residents some of the best protections in the country. It would make them focus on actually stopping the drug trade, rather than directly profiting from it.

Filed Under: asset forfeiture, forfeiture, missouri, schools