Supreme Court Says Civil Asset Forfeiture Violates Constitutional Protections Against Excessive Fines

from the time-to-start-breaking-up-the-blue-line-cartel dept

Great news on the asset forfeiture front, courtesy of the highest court in the land. The Supreme Court has ruled that forfeitures can violate the Eighth Amendment's protections against excessive fines.

The case the Supreme Court ruled on deals with Indiana native Tyson Timbs. Timbs sold $260 worth of heroin to undercover officers. He pled guilty to criminal charges. The state decided to forfeit his $42,000 Land Rover via civil asset forfeiture, routing around the criminal system to make it easier for cops to make off with his vehicle. Timbs challenged this forfeiture as an excessive fine, given that the max fine for his criminal charges was $10,000.

This case made its way to the state's Supreme Court, which overturned the lower court's decision finding in favor of Timbs and the US Constitution, which Indiana had incorporated. The state's highest court stated that this clause of the Eighth Amendment did not apply to civil asset forfeiture. This was a bizarre position to take, as the Supreme Court pointed out during oral arguments.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?

MR. FISHER: Well, again, that depends.

JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.

MR. FISHER: Right.

JUSTICE GORSUCH: And here we are in 2018 -­

MR. FISHER: Right.

JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

The Supreme Court's decision [PDF] makes it clear the US Constitution protects citizens from excessive fines, even if those fines are meted out at the state level. If the Constitution has been incorporated by the states (and it has!), the protections apply.

Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Pp. 2–9. (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.

The state tried to argue the protections only covered in personam (vs. a person) forfeiture -- the kind normally seen in criminal cases where property is seized as compensation for fines or as direct, provable ill-gotten goods obtained as the result of criminal activity.

In rem forfeiture -- the civil route -- lowers the evidentiary bar law enforcement must meet to take property away from citizens. In most cases, there are no criminal charges involved -- only accusations of criminal origin that force citizens to prove a negative to reclaim their seized property.

Here's where this decision has the chance to disrupt a majority of states' civil asset forfeiture programs: the Supreme Court says these incorporated protections also apply to in rem seizures.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.

Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.

So, the rhetorical question posed by this decision is one that's going to be asked of hundreds of state-level civil asset forfeiture programs: if there are no criminal charges, wouldn't ANY seizure of property be "excessive?" It certainly appears a lack of criminal charges would be fatal to in rem seizures, which almost always happen without accompanying charges. This case may not have been specifically about civil asset forfeiture, given Tyson Timbs' guilty plea, but the state made it about it by refusing to acknowledge its incorporation of the Bill of Rights.

This may start a scramble by law enforcement to suss out just how much of the Bill of Rights their particular state has incorporated. Given the Supreme Court's disdain for arguments to the contrary, pushing legal challenges to forfeiture programs uphill is a non-starter. This case was a 9-0 rout in favor of protecting Americans from excessive fines and fees -- in this case taking the form of civil asset forfeiture. This hopefully will be the starting point for nationwide reform of these abusive programs.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, excessive fines, excessive punishment, incorporation, indiana, scotus, states rights, supreme court, trevor timbs

Sheriffs' Union Boss Says Officers Have No Reason To Do Their Job If They Can't Score Forfeiture Cash On The Side

from the checkmate...-I-guess dept

Civil asset forfeiture is an abomination loaded with perverse incentives for law enforcement. Investigations and convictions are too much work. Seizing cash from random motorists or residents is so much easier than legitimate police work. The laws barely governing this practice allow the agency performing the seizure to keep all or most of what's seized, which has led directly to the widespread abuse we see around us today.

The practice always has its defenders. Most of those defenders come from the same agencies that are directly profiting from asset forfeiture. They say the expected stuff about fighting the good Drug War -- that taking $500 from a random motorist somehow creates a ripple effect felt all the way at the top of the drug distribution chain. Everyone knows they're full of shit, but there are enough true believers in most state legislatures that the practice remains largely unaltered across the United States.

But there are some outliers. Some people see the perverse incentives asset forfeiture creates and say perverted cops are the best cops.

Jarrod Bruder, the executive director of the South Carolina Sheriff's Association who frequently lobbies for law enforcement interests at the Statehouse, said that without the incentive of profit from civil forfeiture, officers probably wouldn't pursue drug dealers and their cash as hard as they do now.

If police don't get to keep the money from forfeiture, "what is the incentive to go out and make a special effort?" Bruder said. "What is the incentive for interdiction?"

I don't know... how about IT'S YOUR FUCKING JOB. This is a law enforcement professional who actually thinks cops won't do cop work unless they can periodically seize cash from people they interact with. Hey, Mr. Bruder, if cops can't solicit bribes or extort protection money from local businesses, why should they be bothered to patrol neighborhoods or respond to robbery calls?

If Wells Fargo account reps can't sign people up for accounts without their knowledge or permission, why should they even show up to help people open accounts or deal with banking issues? If an entrepreneur can't rope investors into a pyramid scheme, why even bother getting out of bed at 4 am to bathe in the glow of inflated self-worth? Come on, Bruder. How can you be so obtuse?

There's nothing quite like a law enforcement union rep telling the public the police are only willing to work when they can directly profit from their efforts. That's the kind of word-of-mouth advertising asset forfeiture reform efforts need... courtesy of a union rep who doesn't want the practice ended, much less altered.

That's the stupidest thing said in defense of asset forfeiture in this article from the Greenville News, which gathers law enforcement responses to its investigation of the unsavory tactics deployed by state agencies. Even victims of crime aren't off limits. Local cops will take money right off the kitchen counter when investigating murders and claim the $43 pocketed was the result of criminal activity.

But it's not the only stupid thing said by law enforcement reps defending forfeiture.

Clemson Police Chief Jimmy Dixon said if police didn't get to collect forfeiture money, it would hamper the department's ability to conduct long-term drug surveillance.

"It could potentially shut down our K-9 unit," he said. "Overall, our ability to conduct undercover narcotics operations could be stifled."

Lt. Jake Mahoney with the Aiken Police Department said they'd have to divert money from the budget to cover drug enforcement.

Greenwood Police Chief Gerald Brooks said it would "sharply curtail our drug enforcement activities."

Sounds like another set of cops with motivation problems. But even if you believe they're not like the union rep quoted above them, they're still complaining about possibly not being able to do something they're not legally allowed to do.

Forfeiture proceeds are not meant to be written into a budget or counted on for recurring expenses, but should be treated as a supplement to provide for extra training or equipment, according to the law and legal opinions.

Those are the arguments in favor of asset forfeiture: cops won't do their job if they can't earn cash on the side and budgets, that aren't supposed to include forfeiture funds, will experience shortfalls because chickens cops aren't supposed to count will no longer be hatched. Nice work, so-called drug warriors. It isn't -- and never has been -- about dismantling the drug trade. If law enforcement ever made a serious dent in crime, the extra money would dry up. And that's something they're just not going to allow to happen.

Filed Under: asset forfeiture, civil asset forfeiture, corruption, incentive, jarrod bruder, legalized theft, police, south carolina, stealing

Mississippi Governor Extends Middle Finger To Constitution On Twitter While Applauding Asset Forfeiture

from the time-for-state-voters-to-use-the-EJECT-button dept

Nearly two years ago, Mississippi governor Phil Bryant signed a bill reforming the state's asset forfeiture programs. The state needed it. Mississippi's law enforcement has directly profited from asset forfeiture for years. This has been combined with an extremely low evidentiary bar and zero reporting requirements to completely skew the incentives. Making it so easy to just take stuff from citizens has resulted in things like this:

That conflict [of interest] is on full display in Richland, Miss., where construction of a new $4.1 million law enforcement training facility was funded entirely by forfeiture proceeds garnered by police in Richland—a town of just 7,000 people. A sign in the building’s window boasts: “Richland Police Station tearfully donated by drug dealers.”

And this:

Mississippi drug warriors had their eye on nearly $300,000 in "forfeited" funds but threw it all away by issuing one of the most deficient search warrants ever. It's not that it was loaded with errors or questionable probable cause assertions. It's that it omitted perhaps the single most important element of a search warrant -- the location being searched.

When the forfeiture is a foregone conclusion, small towns end up with multi-million dollar facilities and supposed drug warriors with an eye on someone else's money can't even be bothered to fill out the paperwork. The reforms were needed and Governor Phil Bryant approved them.

Not that it mattered to local law enforcement.

Mississippi police agencies have been seizing cash, guns and vehicles without legal authority for months after a state law changed and police didn't notice.

An Associated Press review of a Mississippi Bureau of Narcotics database shows more than 60 civil asset forfeitures with nearly $200,000 in property taken by state and local agencies under a law that lapsed on June 30.

The state's cops just kept taking stuff under the old rules. And why not? They weren't detail oriented under the old system. That wasn't going to change just because legislators passed a law directly affecting their work. It certainly didn't matter to law enforcement that the top official in the state -- Governor Phil Bryant -- had given his approval of the reforms by signing the bill into law.

Apparently it doesn't matter to Governor Phil Bryant either.

If you can't read/see the tweet, here's the Mississippi governor telling residents they and their precious Constitutional rights can go fuck themselves.

When drug dealers have taken over your neighborhood, call a Constitutional scholar and see how that works out for you.

Governor Bryant's tweet links to the Mississippi Center for Public Policy, which has just sent him a letter asking him (and other state legislators) not to roll back the minor reforms that went into effect last year. His tweet directly mocks Ilya Shapiro, the Constitutional scholar quoted in the Center's post. And it directly mocks everyone who saw law enforcement abusing a weapon in its drug war arsenal to strip property from citizens with almost zero accountability or avenues of recourse.

In short, Governor Bryant thinks cops should have more rights and people not even accused of crimes should have less. That's an extremely shitty look for someone representing one of the fifty states of the United States of America.

Filed Under: asset forfeiture, civil asset forfeiture, legalized theft, mississippi, phil bryant, stealing

South Carolina Cops Love Asset Forfeiture So Much They Take Cash From Crime Victims

from the 95-percent-of-somebody-else's-stuff-is-100-percent-profit dept

You'd think we wouldn't need any more data points on asset forfeiture abuse, but since many states still allow law enforcement to steal cash and personal property from people never even accused of criminal acts, maybe more data points are needed to show lawmakers why this abhorrent practice should be ended.

The Greenville News has put together an in-depth report on asset forfeiture in South Carolina, culled from asset forfeiture cases run through the state's court system. What it found is unsurprising, but still shocking. The article opens with a small sampling of injustices perpetrated by the criminal justice system.

When a man barged into Isiah Kinloch’s apartment and broke a bottle over his head, the North Charleston resident called 911. After cops arrived on that day in 2015, they searched the injured man’s home and found an ounce of marijuana.

So they took $1,800 in cash from his apartment and kept it.

When Eamon Cools-Lartigue was driving on Interstate 85 in Spartanburg County, deputies stopped him for speeding. The Atlanta businessman wasn’t criminally charged in the April 2016 incident. Deputies discovered $29,000 in his car, though, and decided to take it.

When Brandy Cooke dropped her friend off at a Myrtle Beach sports bar as a favor, drug enforcement agents swarmed her in the parking lot and found $4,670 in the car.

Her friend was wanted in a drug distribution case, but Cooke wasn’t involved. She had no drugs and was never charged in the 2014 bust. Agents seized her money anyway.

She worked as a waitress and carried cash because she didn’t have a checking account. She spent more than a year trying to get her money back.

Cash is king in South Carolina. Law enforcement loves taking it. Under the pretense of dismantling drug syndicates, law enforcement officers are taking money from waitresses, businessmen, and crime victims. Cash motivates law enforcement efforts -- dubious drug-focused shakedowns that are often given far too much credibility by local journalists.

This is state where county sheriffs run week-long events with cool names like "Rolling Thunder" and claim they're disrupting the flow of drugs. The reality is there's no disruption. People are separated from their cash and other property, but arrests and convictions are almost impossible to find, despite the discovery of a few hundred pounds of illegal substances. In 2017, the Spartansburg County Sheriff's Department pulled over more than 1,100 vehicles during an operation, searched 158 of them, recovered enough drugs to fill a table for a press conference, but only ended up with eight felony convictions. It did end up with $139,000 in cash, which was the actual focus of the "drug interdiction" activity.

The cases gathered from elsewhere in the state tell the same story: cash-hungry law enforcement agencies taking money from people and calling it a victory in the War on Drugs. African-Americans make up only 13 percent of the state's population, but 65 percent of asset forfeiture cases target African Americans. If you're white, you're not only targeted less frequently but you're twice as likely to get your property returned to you.

Since the state's laws allow 95 percent of everything seized to go to the law enforcement agency performing the seizure, officers are far more focused on cash than securing convictions.

Nearly one-fifth of people who had their assets seized weren't charged with a related crime. Out of more than 4,000 people hit with civil forfeiture over three years, 19 percent were never arrested. They may have left a police encounter without so much as a traffic ticket. But they also left without their cash.

And it's rarely ever taken from dealers. More than half of all cash seizures involved less than $1,000, suggesting officers are more than happy to lift cash from users, leaving the flow of drug traffic completely uninterrupted.

The Greenville News has compiled several disturbing stories of asset forfeiture abuse in another article. These highlight the mercenary tactics of law enforcement agencies which often appear to take money just because they can. In one despicable episode, they searched a house after one of its residents was killed there. When officers found a small amount of drugs, they decided to take all the loose cash they could find, which included $1,700 in bag and $43 found on the kitchen counter. Then, the agency sent the notice of forfeiture to the man they knew was dead -- the same person whose murder they were investigating. It took a court to call bullshit on this and force the agency to serve notice to the murder victim's estate. Even then, the executor of his estate was only able to recover half the cash the officers took.

South Carolina is badly in need of asset forfeiture reform. Unfortunately, no one has been able to push a bill past the formative stages. Given the 95% profit ensured by current laws, any proposed reform is going to face stiff resistance from law enforcement agencies that will feel the state is stealing from them, rather than seeking to prevent them from stealing from citizens.

Filed Under: asset forfeiture, civil asset forfeiture, legalized theft, police funding, south carolina, stealing

ICE Seizes Over 1 Million Websites With No Due Process; Apparently Unaware That Copyright & Trademark Are Different

from the this-does-not-bode-well dept

Over the years, we've written an awful lot about asset forfeiture and how it is basically the government stealing shit they want with almost no due process. But the reason we started writing about asset forfeiture was when ICE used that process to seize a bunch of websites based entirely on the claims of the RIAA and MPAA that those websites were distributing copyright-infringing material. It turned out those claims were totally bullshit, leading to ICE eventually agreeing to return a blog over a year after it had been seized, and two others after holding them for over five years.

I'm still perplexed that this story was almost entirely ignored by the media. This was outright censorship by the US government -- the equivalent of seizing a printing press from a publication and holding it based on nothing other than some private party's complaints about the content of their publication. Incredibly, an ICE official, soon after the initial seizures, made the following bold claim:

"People told us that we will fail if we seize these domain names, and that we'll look foolish," said Erik Barnett, assistant deputy director of the US government's Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year.

He also stated that none of the seized sites had challenged the seizure, which was literally false. Barnett, in case you're wondering, has moved on to the private sector and is apparently now the Regional Head of Europe for Financial Crime Threat Mitigation for HSBC, a company that was described in a recent article this way:

DRUG cartels, mafia, celebrities and the European aristocracy: when it comes to laundering “dirty money” world giant HSBC is king and proof it may actually be impossible to regulate banks.

[....]

The French-TV made “Banksters” claims HSBC was the go-to bank for “a raft of illegal activities, from money laundering for the mafia, to enabling tax evasion and currency manipulation”.

Right.

ICE's boss at the time of these seizures, John Morton, also made some flabbergasting comments:

We don't have any interest in going after bloggers or discussion boards," he said. "We're not about what is being said by anybody. We're about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."

Except it wasn't that simple, as proven by the fact that ICE eventually returned all of those sites. Without getting any sort of apology from Morton. Or any acknowledgement that the 1st Amendment actually bars you from seizing a website. Oh, and if you're wondering, Morton is now the Chief Compliance Officer at Capital One, a company that paid out a $200 million fine for deceptive marketing, and also is viewed as the "least favorite" credit card company... perhaps because it sues more of its customers than any other credit card company.

So, anyway, back to ICE and seizing websites. Even after its total flop in seizing blogs for false accusations of copyright infringement, ICE has gone right on seizing websites, though most of them appear to be focused on seizing sites selling counterfeit goods, rather than blogs and forums discussing music.

Still, it seems notable that in late November, ICE proudly announced that it had seized over a million websites, though frankly, the press release raises a hell of a lot more questions than it answers. First off, it appears that ICE has no clue that copyright and trademark are entirely different things.

More than 1 million copyright-infringing website domain names selling counterfeit automotive parts, electrical components, personal care items and other fake goods were criminally and civilly seized in the past year through the combined efforts of law-enforcement agencies across the world, high-profile industry representatives and anti-counterfeiting associations.

"Copyright infringing website domain names" already is a weird description (were the URLs themselves infringing?) but it's made even weirder by saying that these sites were seized because they were selling counterfeits. Counterfeiting is a trademark issue, not a copyright one. Those laws are entirely different. Shouldn't a government agency in charge of enforcing these things... uh... know the difference?

The ongoing intellectual property enforcement initiative targeting fake websites, dubbed Operation In Our Sites, was facilitated by the National Intellectual Property Rights Coordination Center (IPR Center), a joint-task force agency led by U.S. Immigration and Customs Enforcement. The IPR Center, which stands at the forefront of the U.S. government’s response to IP theft, worked directly with key international law-enforcement authorities and industry organizations representing the electronics sector, luxury brand-name designers, film and entertainment and several entities specializing in apparel and accessories through the major enforcement effort.

Operation In Our Sites is the same one that was named when ICE seized all those sites I mentioned earlier -- in which blogs and discussion forums were seized, with no evidence to back them up, and held by the US government for between one and five years, before finally being handed back to the original owners because no one could ever prove those sites actually broke the law. Seems kinda weird to now tout that same operation as a roaring success.

And, need we remind you that, under the "Operation in Our Sites" banner, ICE once accidentally seized 84,000 sites, denied it for nearly a week and then finally admitted they fucked up? This is the same Operation they're now promoting for seizing one million sites? It's not clear if they include those 84,000 that were done "accidentally" in that total.

Roughly 33,600 website domain names were criminally seized in a collaborative effort between ICE’s Homeland Security Investigations (HSI), Europol, Interpol and police agencies from 26 different countries. Industry partners participating in the operation were fully responsible for civilly seizing 1.21 million domain names and shutting down 2.2 million erroneous ecommerce links featured on social media platforms and third-party marketplaces.

Hmm. "Industry partners" were "fully responsible for civilly seizing" these domain names. Does that mean the US government "seized" them... or that the "industry partners" got the domains. Because if it were the latter... that seems extraordinarily questionable. I know that, in some of those earlier seizures, we found it odd and distasteful that ICE announced the seizures of sites from a Hollywood studio, but it's another thing altogether if the federal government is literally taking domains and handing them to private companies without even a whiff of due process. Even if this just means that the "industry partners" gave ICE a big list, then we're still left with a fairly long list of due process questions. Did ICE really check all 1.21 million domains before having them seized? Considering that they fucked up so badly a few years ago at a time when they merely seized five domains, forgive me for questioning the amount of review that went into 1.21 million.

Investigations led by HSI resulted in the removal of copyright-infringing websites that sold counterfeit airbags and integrated sensors, both commodities that present a potential safety hazard. An investigation based in Louisiana led to the seizure of five website domain names – including Chinaseatbelt.com; Airbagpart.com; Chinasafetybelt.com; Fareurope.com; and Far-europe.com – involved in the sale of fake automotive parts. A joint case between HSI and Department of Defense investigative agencies resulted in the removal of PRBlogics.com, a copyright-infringing website offering counterfeit integrated sensors.

Once again, ICE makes it clear that they haven't the slightest clue that copyrights and trademarks are not just separate laws, but that they originate from two totally different parts of the Constitution. None of what's being described as "copyright-infringing" appears to be copyright related. Look, I get it that some people -- often reporters! -- mix up copyrights and trademarks (and patents!), but this is a law enforcement agency of the US government, who actually (for reasons that make no sense at all) has a major role in enforcing intellectual property laws. You'd think that at least they could get this kinda stuff correct.

Oh, and I should be clear: this isn't just ICE in general. This is a special division of ICE specific to "Intellectual Property."

“The IPR Center is committed to supporting enforcement actions that target copyright-infringing websites threatening the health and safety of unsuspecting consumers by offering dangerous counterfeit goods,” said IPR Center Director Alex Khu. “Collaborative efforts with external law enforcement agencies and industry have led to a crackdown on intellectual property theft that negatively impacts economies and funds organizations involved in other criminal activities.”

The "IPR Center" doesn't know the difference between trademarks and copyrights?!? Shouldn't... uh... that be seen as a problem?

Each year, the market is flooded with counterfeit products being sold at stores, on street corners and online. Additionally, criminals have taken advantage of the internet to deceive, sell and ship fake products directly to American consumers. The most popular counterfeit products seized each year include watches, jewelry, handbags, wallets, wearing apparel/accessories, consumer electronics/parts, pharmaceuticals and personal care products.

As we've discussed for years, multiple studies have shown that people buying counterfeit watches, jewelry, handbags, wallets and clothing tend not to be "tricked" into buying these things. Most buy them because it's all they can afford. The studies have shown that many of these purchases are aspirational, in that these people want to buy the real thing, but can't afford it yet. Studies have also shown that the same people who buy these knockoffs frequently will later buy the real thing when they can afford it. In short, these counterfeit purchases rarely result in any harm. The consumer has not been deceived. The trademark holder has not lost any money (and, indeed, may make money in the long run). This just seems to be ICE shutting down websites because it can.

Anyway, this press release is so bizarre, and so devoid of actual information, I've fired off a FOIA request asking for the details of these "seized" domains and the communications with those industry partners. Should ICE ever decide to obey the law and respond to the FOIA, we'll share it here. I wouldn't recommend holding your breath.

Filed Under: asset forfeiture, copyright, counterfeits, dhs, domain seizures, domains, ice, trademark

Investigation Finds Philly PD Officers Bought Forfeited Houses Seized During Drug Arrests

from the unlisted-job-perk dept

Philadelphia's asset forfeiture programs have subjected the city's residents to all sorts of abuse. Cops have taken cars away from their owners because a child, relative, or friend was arrested while driving the vehicle. Law enforcement has tried to take entire homes away from grandmothers because their kid sold $140-worth of marijuana to an undercover cop.

A recent court settlement is reforming the program -- something the city's legislators have had zero success doing. Cash under the amount of $250 can no longer be forfeited. Seizures under $1000 need to be accompanied by an arrest and charges. The city's law enforcement has been flexing its creativity, using the new arrest requirement to seize vehicles as "evidence" and hoping the wheels of justice grind slowly enough it would be cheaper to relinquish ownership than pay to get the car out of the impound lot.

We know cops directly profit from asset forfeiture, but when we say that we generally mean their agencies get new toys, vehicles, and other niceties by converting other people's property into discretionary spending. But there's an actual personal profit angle to forfeiture that hasn't been discussed. An investigation by PlanPhilly shows police officers have personally and directly benefited from property seizures tied to drug enforcement efforts. (h/t Wendy Cockcroft)

Maleny Vazquez remembers when the police came and took the house across the street. Vazquez has only lived on this block of Waterloo Street for a few years, but in this chaotic section of Kensington, riven by the drug trade, she has gotten used to seeing police empty homes.

“There were lot of guns and a lot of drugs in there,” she recalls. “They took 30 guns out of there.”

In neighborhoods across Philadelphia, the city sells homes that owe back taxes, or have fallen into foreclosure. But the sales in Vazquez’s neighborhood were different. Here, police seized properties after drug raids. Once they were taken, the district attorney auctioned them off to the highest bidder, for cash that went back to the law enforcement agencies.

This program saw Philly law enforcement rake in as much as $6 million a year for most of the past quarter-century. But it's not just the indirect benefit incentivizing property seizures. With this incentive, drug raids could just be home shopping.

[R]ecords showed that members of Philadelphia law enforcement directly benefited from these sales. This investigation detected at least 11 properties that were sold to Philadelphia police officers trying their hands at real estate investment.

The number may not seem like much over the course of twenty-five years, but PlanPhilly says there's no way of knowing exactly how much property ended up in the possession of law enforcement officers. It was only able to examine 1,682 records held by the District Attorney's office, which handled the sale of forfeited homes. The Philly PD conveniently decided not to retain records on forfeited property, ensuring it had nothing to give to PlanPhilly when it started asking questions.

The Philly PD does not actually prohibit officers from buying seized property. It notes it "gives the appearance of impropriety," but apparently feels it isn't actual impropriety worth deterring. Nothing prevents officers from buying up houses they've seized except their better judgment. For at least 11 officers, an appearance of impropriety isn't enough to deter them from looking like they're headed out home shopping every time they don their SWAT gear.

Filed Under: asset forfeiture, legalized stealing, philadelphia, philadelphia police department, self dealing

30 Years Ago, Maine Changed Its Law To Curb Forfeiture Abuse. Records Show Nothing Has Changed.

from the hereby-mandates-depositing-of-funds-if-law-enforcement-feels-like-it dept

The thing about asset forfeiture is it's stocked full of perverse incentives. With a minimum of civil paperwork, law enforcement agencies can directly benefit from the property they seize and all without the hassle of having to deal with the uncertainty of criminal proceedings. The property is seized and its former owners are free to go. Minimum expenditure, maximum profit, and it's all totally legal.

The best way to reform civil asset forfeiture is to attack these incentives. Some states, like Maine, have done this by forcing law enforcement agencies to deposit forfeiture proceeds into the general fund. Highway robbery now enriches the entire state, which won't be much comfort to victims of forfeiture programs. But there should be fewer victims of forfeiture now that the seizing agency doesn't have a personal stake in the forfeiture.

Should be. The solution looks good on paper. The execution, however, leaves something to be desired. (via the ACLU)

[D]espite Maine’s forfeiture law’s potential to curb corruption, the state’s Office of Fiscal and Program Review has confirmed that — aside from a single deposit of $4,335 made by the Public Safety Department in 2010 — no recent proceeds from property forfeitures have gone into Maine’s general fund.

The provisions to direct seized cash and property into the state general fund were originally drafted in 1987 and amended in 1999. It is not clear how long this law has not been complied with by state public safety officials.

Well, from the looks of it, the law has not been complied with for most of the last 30 years. Maybe record keeping doesn't extend that far back, but the fiscal office offered up no evidence suggesting it was complied with more frequently a couple of decades ago.

It is clear agencies are still directly benefiting from civil asset forfeiture. To route around state restrictions, local agencies are bringing in the feds to take advantage of a sharing program that's not subject to local laws. Federal records show state agencies have taken home $13 million in funds from federal adoption of forfeitures since 2000.

The lack of contribution to the state's general fund shouldn't be taken to mean state agencies have abandoned non-federal-assisted forfeiture. A public records request by the Institute for Justice obtained data showing state agencies are still racking up about $250,000 a year in cash forfeitures alone. That should have made its way to the state fund, but there's no records showing that ever happened.

Rule changes mean nothing if no one's willing to enforce them. The state legislature made an effort thirty years ago to reform forfeiture, but for the last decade-plus, no one in the state has done anything to ensure agencies are complying with the rules. Law enforcement agencies aren't going to hold themselves accountable and they'd still like to be the largest -- if not the only -- beneficiary of seized property. That's exactly what appears to be happening here. Laws mean nothing if they're not enforced -- a truism law enforcement agencies are keenly aware of.

Filed Under: asset forfeiture, civil asset forfeiture, maine

Tennessee Legislators Can't Stand Up To Cops; Keep Federal Loophole Open For Nashville Law Enforcement

from the asset-forfeiture-gone-mad dept

Earlier this year, the Tennessee legislature passed some very minimal asset forfeiture reforms. The bill, signed into law in May, does nothing more than require periodic reporting on use of forfeiture funds and the occasional audit.

What it doesn't do is require convictions. It also doesn't close the federal loophole, which allows Tennessee law enforcement to bypass state laws if they feel they're too restrictive. Given that state law doesn't really do anything to curb forfeiture abuse, the federal adoption lifeline isn't used quite as often in Tennessee as it is by law enforcement agencies in others states with laws that are actually worth a damn.

But local cops really really really want the federal loophole open. They've been applying pressure to Nashville legislators and it has had the expected effect. (h/t Daniel Horwitz)

Nashville on Tuesday renewed its participation in a controversial 1980s-era federal program that's allowed the police department to keep proceeds from seized assets taken from people suspected of crimes involving drugs.

After spirited debate, the Metro Council voted 25-5 with two abstentions to renew Metro's participation in the "equitable sharing program" with the U.S. Department of Justice and federal Drug Enforcement Administration.

The loophole Nashville law enforcement barely needs will remain open. And it will remain open because… well, budgets are tight and we can't keep asking state taxpayers to make up the difference.

Councilwoman Jacobia Dowell, who also voted for renewing the agreement, said not renewing the program would leave a hole in the city's budget.

"I have zero confidence in this council body to find $150,000," Dowell said, noting the city's budget struggles this past year.

So, instead of all taxpayers, Councilwoman Dowell wants to have just a few taxpayers pitch in to help cops -- taxpayers who happen to have property law enforcement thinks they didn't acquire legally.

Or not even taxpayers! Why even trouble those who reside in the state to give law enforcement some extra cash. Why not just take money from people leaving the state? That's the way Tennessee's "drug interdiction" teams work. According to law enforcement, they want to stop the flow of drugs into the state. That doesn't really explain their actions:

While drugs generally come from Mexico on the eastbound side of Interstate 40 and the drug money goes back on the westbound side, the investigation discovered police making 10 times as many stops on the so-called "money side."

Law enforcement doesn't seem to mind the drugs coming in, but it's certainly not going to let the cash head back out. Councilwoman Dowell thinks if cops can't lift money from drug dealers, they won't be able to buy the stuff they need to continue to allow drugs to flow into the state.

What Dowell absolutely doesn't want to see is her poorest constituents asked to dig even deeper to keep the drug interdiction units in business.

She said [the budget shortfall] would end up coming from Nashville's "most distressed and the impoverished communities."

Bless her heart. Oh wait.

Although civil asset forfeiture affects people of every economic status and race, a growing array of studies indicates that low-income individuals and communities of color are hit hardest. The seizing of cash, vehicles, and homes from low-income individuals and people of color not only calls law enforcement practices into question, but also exacerbates the economic struggles that already plague those communities.

None of the rationale makes sense. The drug teams that don't actually catch drugs need money to keep doing the job they're not doing and they need to take it from someone since the state's not going to help them out. The people who are going to help them out are either people leaving the state or low-income residents.

The problem is that when you say someone's going to have to come up with $150,000, someone will have to come up with it. And when that number increases -- and it will -- the shortfall comes directly from residents and other US citizens who have their belongings taken from them without even being accused of a crime.

$150,000 is only the cut from federal sharing. That's Nashville law enforcement's manageable money habit. There's more to it than the federal slush fund. Nashville law enforcement has created a drug enforcement ecosystem that can't be sustained without the seizure of millions of dollars every year. Even prosecutors recognize the problem.

[Nashville County District Attorney Glenn] Funk stated that on his first day as Nashville’s District Attorney, he was told that $1.7 million to $2 million would be needed to be brought in through seizures in order to keep the drug task force in operation. He also expressed concern that individuals were indicted or subject to forfeiture proceedings who would not otherwise have been if civil asset forfeiture were not a “cash cow.” He stated that officers sometimes target people with high-value cars so they can forfeit them and put the cars into service. General Funk provided these as examples of problems that arise “when we don’t have legislative oversight over the funds and assets . . . that are being seized.”

If you want to start fixing forfeiture abuse, start with the federal loophole. Agencies will realize it's not impossible to live without this money. And from there, you can start cutting them off from the main supply by eliminating civil asset forfeiture altogether by adding a conviction requirement. But if you can't even make this small move, you're not serious about fixing the problem. That's Nashville's problem -- one that harms citizens while keeping law enforcement flush with funds they really didn't earn.

Filed Under: asset forfeiture, civil asset forfeiture, forfeiture, law enforcement, nashville, police, tennessee

Philly Cops Skirting Forfeiture Restrictions By Seizing Cars As 'Evidence'

from the any-port-in-a-shitstorm dept

A couple of months ago, a consent decree drastically restructured Philadelphia's severely-abused asset forfeiture program. It didn't eliminate the program entirely, but it did eliminate the small-ball cash grabs favored by local law enforcement. The median seizure by Philly law enforcement is only $178, but it adds up to millions if you do it all the time. Small seizures like this now need to be tied to arrests or the property needs to be used as evidence in a criminal case.

Other restraints will hopefully eliminate local law enforcement's worst practices -- like seizing someone's house because their kid sold $40 of drugs to a police informant. It also should slow down seizures of whatever's in a person's pockets by forbidding forfeitures of under $250 entirely.

The consent decree obviously won't solve everything, and part of the problem is the consent decree itself. It forbids seizures of less than $1,000 unless the property is evidence in an ongoing case. Guess what local law enforcement is doing.

In November 2017, Iyo Bishop of Philadelphia was arrested on assault charges after a boyfriend, who she said was abusive, accused her of striking him with an SUV. City police picked her up after spotting the vehicle parked on the street weeks later. Bishop maintained her innocence but was cuffed and thrown in a squad car. She then watched in disbelief as an officer hopped in her 2002 Jeep Liberty and drove off.

Although the charges against Bishop were eventually dropped, she never saw her vehicle again. Police sold the Jeep at auction for $1,155 in storage fees they had assessed while the case made its way through the court system.

As this report by Ryan Briggs of The Appeal shows, the consent decree basically codifies this behavior. Cops seize vehicles when making arrests, ticking one of the requirement boxes. Then they claim the vehicle is evidence, ticking the other box.

Older vehicles worth less than $1,000 simply sit in impound lots racking up fees while the accused's case languishes in the court system. The vehicle can't be returned until the criminal case is processed, so it doesn't take long for impound fees to outweigh the vehicle's value. All of this is completely beyond the control of the person's whose car has been seized.

Even if charges are dismissed or the accused is cleared of wrongdoing, the car's owner still owes these fees. Every day they can't pay it, the total increases. Sooner or later, the vehicle will be auctioned. Now the innocent person has no vehicle and is still ultimately liable for uncollected fees.

This allows cops to make money on seized vehicles even if the vehicle isn't seized from someone suspected of criminal activity. It can happen to crime victims as well.

In 2014, Karin Foley and her husband, Willis, were moving from New York State to South Carolina when their vehicle blew a tire in Pennsylvania. When Willis Foley pulled the car over and got out to change the tire, a semi struck and killed him. Pennsylvania State Police later determined that the truck driver had been at the wheel for nearly 30 hours straight.

But the state troopers who responded to the accident impounded the Foleys’ diesel pickup and a horse trailer packed with their possessions as evidence. Like Bishop, Karin Foley never saw the truck, the trailer, or any of her belongings again.

The criminal case against the trucker dragged on for three years but never made it to trial. In May, he pleaded guilty to involuntary manslaughter. State police called Foley a few months later to tell her that she had one week to travel to Pennsylvania—hundreds of miles from her South Carolina home—or they would auction her truck and trailer.

And auction it they did. The seized evidence was never used in court and local law enforcement immediately flipped the seized vehicle for unearned profit. To top it off, the coroner billed the widow $175 for her husband's body bag.

While it's understandable some property will be seized as evidence in criminal cases, fees shouldn't be charged to those found innocent or to victims of criminal activity. This is just another form of forfeiture that provides almost no avenue of recourse to property owners other than paying the government to give them back their stuff.

Filed Under: asset forfeiture, civil asset forfeiture, consent decree, legalized theft, philadelphia

Michigan Cops Destroying Drug Cartels With Microscopic Drug Busts, Seizures Of 20-Year-Old Vehicles

from the defeating-a-giant-means-chipping-away-at-random,-possibly-unrelated-toes dept

Crushing drug dealers and criminal cartels: that's the asset forfeiture narrative. The reality is something completely different. It's the government taking property from people with a minimum of due process, urged on by a set of perverse incentives. Law enforcement agencies directly profit from the stuff they take from people, so there's really no reason not to.

When the general public hears forfeiture is being used to target criminal cartels, they tend to think of piles of cash, luxury vehicles, sprawling mansions, and the occasional aircraft. In reality, it's whatever cash cops can find laying around (usually less than $1,000) and vehicles a couple of decades old that are someone's barely-reliable ride.

Whatever statistics can be obtained -- and it isn't much, given the secrecy cloaking these state-ordained seizures -- always tell the same story: 99% of civil asset forfeiture is penny ante bullshit. It's this way for several reasons. First, smaller forfeitures aren't worth fighting in court, so small ball seizures are almost guaranteed to end up in the hands of law enforcement. Second, it all adds up over the year. A bunch of small seizures turns into real money eventually. Third, cops aren't willing to let drug lords walk. But they'll take stuff from anyone they can imagine might be part of a cartel, even when it's someone busted carrying nothing more than a personal stash.

And that's if they even find contraband at all. The absence of criminal evidence seldom deters seizures, and forfeitures have been expanded to cover vehicles driven by impaired or uninsured drivers.

Wayne County, Michigan is no exception to this particularly depressing set of rules. As the Michigan Capitol Confidential reports, local law enforcement has seized millions of dollars worth of property, but a closer examination of the data shows its forfeiture programs prey on the poor and/or drug users who have nothing to do with the supply side of the Drug War.

Altogether, there were 736 asset forfeiture proceedings in Michigan in 2017 during which someone lost property to the government despite never being charged with any crime; this happened 380 times in Wayne County. A state law passed in 2015 requires law enforcement agencies across Michigan to submit data about forfeiture to the Michigan State Police.

Jarrett Skorup of the Mackinac Center for Public Policy, who co-authored a recent report on civil forfeiture, said the data shows nearly all of those Wayne County seizures involved vehicles valued at less than $1,000. He said it’s likely that these forfeitures disproportionately affected low-income individuals, who are less able to afford an attorney or navigate the legal system to reclaim their property.

The report [PDF] doesn't break down the total value of vehicles seized, but the numbers bear out Skorup's claim. The state as a whole reported $13 million in net total proceeds from all property forfeited. $11 million of that was cash. There were 7,999 vehicles seized statewide. Simple division says that's only $250 per vehicle. State agencies also seized other property that wasn't vehicles or cash, further lowering the per vehicle estimate.

Now, there are a few unknown factors that may bring that number back up slightly. It's unclear whether this reflects proceeds after auctions, etc. that would result in a lower net total for the state due to differences in expected property value and its actual value after "disposal." This may raise the per vehicle value, but there's still a long way to go from the $250 baseline and a dollar amount that would suggest something other than what appears to be happening here: thousands of seizures of vehicles worth less than the legal costs that would be accrued fighting the forfeiture.

There's more disturbing data in the report beyond the apparent wholesale forfeiture of cars whose value barely exceeds the going rate for scrap. A vast majority of those targeted by forfeiture -- with or without accompanying criminal charges -- were caught with the lowest amounts needed to trigger criminal charges. 88% of cocaine-related seizures involved the less than 50 grams. 83% of marijuana-related seizures also involved the lowest amounts needed to charge someone. And so on down the chart of criminal charges.

The lowest-level busts make up the vast majority of all seizures. It makes sense that officers would encounter users far more often than dealers. What doesn't add up is the narrative: that forfeitures are essential to destroying drug cartels. All it's really doing is depriving people of property and disproportionately punishing the demand side of the drug problem.

Serious crimes barely register. There are thousands of drug-related forfeitures -- with more than 80% of those covering bare minimum possession. The list of serious crimes -- ranging from grand larceny to child molestation to home invasion -- makes up only 95 of the state's ~6,000 seizures. The only other big chunk (984 forfeitures) is related to prostitution charges, showing the state is willing to take away vehicles for engaging in consensual sexual transactions.

This abuse of a law enforcement tool has gotten the county sued. Multiple citizens are seeking to have the program found unconstitutional. Two of the plaintiffs listed in this story by the Detroit News have waited years for a hearing on seized vehicles, one of which is a 1998 Toyota Avalon, to give you some idea what kind of prime drug-dealing vehicles the county targets.

The small bright spot in all this is there's a bill seeking to institute a conviction requirement for forfeitures. If state agencies have to be able to prove their case beyond a reasonable doubt, they'll be far less likely to engage in specious seizures based on little more than the agency's desire to have more money/stuff. Unfortunately, the bill appears to be waiting for its Senate counterpart to arrive and it's been waiting almost six months at this point.

Filed Under: asset forfeiture, civil asset forfeiture, drug busts, michigan, theft