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

Mississippi Law Enforcement Performed $200,000 Worth Of Illegal Forfeitures Because It 'Didn't Realize' Law Had Changed

from the ignorance-of-the-law-is-the-best-excuse dept

Ignorance of the law is no excuse, us lowly peons of the American justice system are told. The same does not apply to law enforcement, whose business it is to enforce laws. I mean, it's right there in the name. And yet…

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.

"Didn't notice." Try using that excuse the next time you, I don't know, hand someone a straw or... um... offer underweight ice cream to consumers. That's the AP's phrasing of the official excuse for law enforcement's inexplicable inability to stay abreast of laws affecting their work.

Here's what officials actually said, which uses more words, but doesn't sound any better.

Mississippi Bureau of Narcotics Director John Dowdy said he didn't know the law had expired until September, when a Rankin County prosecutor notified him.

"Honestly, we were unaware of the sunset provision," he said. "We thought that had been fixed in the legislative session."

Now, this could be a legitimate excuse. But not for a narcotics director who probably had plenty to say about the impending demise of the most profitable part of the state's asset forfeiture program. He could not have been completely "unaware." After all, here he is announcing the roll out of a website listing state forfeiture actions as mandated by the same law Dowdy now claims he didn't know much about.

It might be a legitimate excuse for a federal official who may not know the legislature included a sunset provision that gave legislators a chance to kill the passed law before it went into effect. Some efforts were mounted to roll back the reforms, but they both died without moving forward.

Because law enforcement can't follow the law, lots of people will be getting their stuff back. The Tampa Bay Times article says the Mississippi Bureau of Narcotics is offering to return $42,000 worth of property it illegally seized -- a phrase that makes its effort sound far more magnanimous than the reality: relinquishing stolen property.

But this screw up isn't going to keep it from seizing what it can, no matter how petty the amount. The thirty-day window on seizures under $20,000 is still open on a few cases, so law enforcement is still moving ahead with a few small-ball forfeitures.

Dowdy said agencies that seized property could still sue, seeking a judicially-sanctioned forfeiture, if less than 30 days elapsed. In Harrison County, for example, officials filed suit to seize $939 from Danielle Laquay Smith on Sept. 26, exactly 30 days after seizure.

The new law requires all forfeitures to be handled in court. The old law only required that on seizures above $20,000. There's more than $200,000 in illegal seizures on the books, and the potential return of $42,000-worth still leaves a lot unaccounted for. And much of that appears to be held by another person who can't keep track of legislative developments despite his position as a government official.

In northern Mississippi, District Attorney John Champion said, "I wasn't aware of that," when asked about the change. Police agencies in his five-county district, particularly in DeSoto County, have the majority of questionable seizures listed statewide.

Officers are Johnny-on-the-spot when it comes to perceived violations by citizens, but blissfully unaware of legal changes directly affecting their daily work. This is absurd. And it is the status quo. Prosecutors -- who directly benefit from forfeitures -- aren't aware either, most likely because knowing the law would adversely affect a valuable revenue stream. This is inexcusable, but it's also likely to go unpunished. The law is clear on the matter: negative effects of legislation shall be borne by the general public.

Filed Under: civil asset forfeiture, mississippi, police

Government Moves To Seize All Backpage Assets Prior To Securing Convictions

from the civil-asset-forfeiture:-because-proving-your-case-takes-too-much-time dept

The DOJ rounded up the cast and crew from Backpage and threw a 93-count indictment at them. It did this prior to FOSTA's passage -- legislation portrayed as the only way the government could take sites like Backpage down. History is being rewritten to give FOSTA the credit for the Backpage takedown, but the truth is the government didn't need the legislation to target the site. Of course, for all the talk of sex trafficking, sex trafficking is not among the 93 charges the government brought against the site's personnel.

Now that it has Backpage execs facing criminal charges, the government is doing what it can to make sure they can't mount a solid defense. The government is coming after their money via civil asset forfeiture, hoping to lock up their property even if it can't lock up the Backpage site runners.

The complaint [PDF] -- titled "United States of America v. Various Internet Domain Names" -- claims everything the site's personnel owned was obtained through illegal activity, even if it's likely at least some of the assets are completely unrelated to Backpage's income. It also must be noted these assertions are being made prior to anything being proven in the DOJ's prosecution, but will receive far less scrutiny from the judge making the determination on the ultimate ownership of the property.

The complaint also contains a large amount of "surrendered" property, which was apparently handed over voluntarily after the arrest of Backpage execs. This list includes internet detritus such as domain names and bitcoin. There are millions of dollars at stake, scattered across multiple banks located around the world. The DOJ is busy consolidating its purloined fortune in advance of convictions.

This is a bullshit, but completely legal, tactic. In addition to depriving the accused of the finances needed to secure solid legal representation, it also forces them to fight a legal battle on two fronts. The money the defendants no longer have access to won't help them find top lawyers willing to take on the government in both criminal and civil actions.

In addition, the complaint plays small ball to hoover up funds from accounts in the names of Backpage execs' family members. Sure, the governments wants what's in joint accounts or those controlled by significant others, but the decision to empty personal checking accounts of what appear to be the children of the defendants seems unnecessarily punitive.

Here's what listed under Backpage co-founder James Larkin's seizable assets:

$278.73 seized from Bank of America account ‘8225 (“BA ‘8225 Funds” or “Account 22”), held in the name of Troy C. Larkin (“T. Larkin”)

$1,038.42 seized from Bank of America account ‘7054 (“BA ‘7054 Funds” or “Account 23”), held in the name Ramon Larkin (“R. Larkin”)

Then there's some questionable claims about the legality of certain expenditures. These allegations are made to shore up the government's seizure of all funds in certain accounts. The nefarious activities alleged include [re-reads complaint] paying for phone service, internet service, and site backup.

Plaintiff alleges that a substantial percentage of outgoing payments from Account 1 have been payments for the operation of Backpage.com. For example, between July and October 2017, funds were wired from Account 1, as following:

a. $570,530 to Verizon Digital Media Services in Los Angeles for services related to the Backpage.com website; and

b. $1,497 to “Backupify,” a company that provided data backup services for Backpage

Linking "Account 2" to "Account 1" -- supposedly as evidence of criminal activity -- the government finds money was moved around to… pay for internet service. The lead-up and denouement are unintentionally hilarious.

Funds from Account 2 were also used to promote and facilitate prostitution. For example:

a. On December 2, 2016, the Netherlands Account transferred $324,055.85 to Account 2;

b. On December 8, 2016, the Netherlands Account transferred $499,970.00 to Account 2;

c. On December 27, 2016, the Netherlands Account transferred $199,970.00 to Account 2; and

d. From March to December 2017, Account 2 paid over $9,000 to “Cox Communications,” an internet services company that Backpage used to facilitate its internet presence and promote its sale of prostitution advertising.

Whatever you may think about Backpage and its execs, you should not be applauding the government's decision to move forward with seizing assets before securing convictions and proving its case in court. This gives the government two shots at these funds -- via civil asset forfeiture and, if this fails but the government secures convictions, via criminal asset forfeiture post-trial.

It's a Congress-ordained scam -- one that separates people from the assets they need to fight criminal charges while they're still under the presumption of innocence. Civil asset forfeiture allows the government to declare inanimate objects "guilty" using a lower standard of proof and could conceivably allow the feds to keep every cent they seized even if the arrested Backpage execs are found innocent. And, while the government can drag out criminal proceedings for as long as it can get away with it, the clock starts ticking immediately on civil forfeiture, forcing defendants already tied up in one court to somehow find a way to fight the proceedings with limited time and funds.

Filed Under: civil asset forfeiture, doj, domain names, james larkin, phone service
Companies: backpage

Couple Get Back $10,000 Seized By State Trooper After Local Media Starts Asking Questions

from the positive-power-of-shame dept

Here's one way to avoid the lengthy, often-futile process of recovering your assets after they've been seized by the government via civil asset forfeiture. The Charleston Gazette-Mail reports law enforcement suddenly decided to return $10,000 to the couple it seized it from, but only after being asked to comment on the forfeiture. (h/t C.J. Ciaramella)

After the Gazette-Mail reached out to the state police Monday with inquiries about the seizure, and after weeks of [Tonya] Smith calling police, the Jefferson County prosecuting attorney and local politicians, Smith said an officer returned her and [Dimitrios] Patlias’ possessions in full Thursday evening.

The couple was traveling from New Jersey to a casino in West Virginia. A West Virginia state trooper rolled the dice on the out-of-state plates and pulled over their car for "failure to drive within [their] lane." From there, the stop became exploratory with the trooper accusing them of smuggling drugs, smuggling cigarettes, or -- following a search of the vehicle -- gift card fraud.

Smith and Patlias had $10,000 in cash between both of them. In addition, they had a number of gift cards, loyalty cards, and cash cards -- all legally obtained -- which the trooper used to shore up the last accusation on the list. Despite being possible fraudsters/smugglers, the trooper handed the pair a warning for the lane violation and let them go on their way. So, they returned to New Jersey with $2 in their pockets.

This set the forfeiture in motion. The couple had 30 days to state a claim to their belongings, otherwise the proceeds would be split between the state police and the prosecutor. The trooper had every incentive to seize everything in the car (which included a cellphone): 90% of proceeds go to the agency that performed the seizure.

As the article points out, this could have been deterred, if not avoided completely. But, unfortunately, a bill requiring convictions for forfeitures died in the state legislature. Despite the incentive-skewing, asset forfeiture still has its advocates who make horrible arguments like this on its behalf:

Those in support of the practice say the ability of law enforcement officers to use forfeiture laws can hamstring drug dealing networks by leaning on their finances, which can be more effective than criminal charges. They also point out that the proceeds can help police buy much-needed equipment.

First, most forfeitures performed in the US involve low dollar amounts, often taken from someone never charged with drug-related crimes. Second, what kind of idiot justifies the seizure of property from people who've never been convicted of a crime by stating that it helps the government buy new stuff for itself? The answer is: only the sort of idiot who can't see how it incentivizes exactly the sort of thing that happened here: a state trooper pulling over an out-of-state driver for a roadside fishing expedition. Nothing about the process deters police officers from shaking down anyone and everyone for valuables so long as they can imagine a criminal origin for the property of citizens.

This worked out well for this couple, who now won't have to spend more than what was seized to get their property returned. Fighting forfeiture is expensive and the outcome is far from guaranteed, even if there's no evidence the seized property was involved in or the byproduct of criminal activity. Officers looking at a 90% payout down the road know this. That's why asset forfeiture -- minus criminal charges -- is the abusive debacle it is today. Nothing about it rewards honest law enforcement work.

Filed Under: asset forfeiture, civil asset forfeiture, dimitrios patlias, jefferson county, media attention, police, west virginia

Utah's Top Court Says Cops Can't Use Federal Loophole To Dodge Criminal Charge Requirement For Forfeitures

from the 500,000-reasons-to-try-this-endaround dept

A win for at least one resident -- and victim of shady forfeiture practices -- has been handed down by Utah's top court. Kyle Savely had $500,000 taken from him by Utah law enforcement during a traffic stop. No charges were filed and Savely was never arrested, but a dog told the Utah Highway Patrol it could search the vehicle and seize the cash, even though the search failed to produce any drugs. (h/t The Newspaper)

An early forfeiture reform initiative, voted into law by Utah residents in 2000, says the government must return forfeited property if no criminal charges are filed within 75 days. The Utah Highway Patrol apparently had no charges to file, but rather than return the money when Savely requested it back, it chose to hand it over to the DEA via equitable sharing. Equitable sharing with the feds allows state agencies to bypass more restrictive state laws and help themselves to 80% of whatever's seized.

The DEA pitched in, too, hoping for 20% of the seized cash, further demonstrating the perverse incentives of the federal forfeiture loophole. From the decision [PDF]:

On February 10, 2017, seventy-five days after UHP’s seizure, Mr. Savely filed a petition in state district court seeking the release of his property. In a hearing on February 21, 2017, the state district court ruled in favor of Mr. Savely, concluding that UHP was required by the Act to procure an order from a state district court that authorized UHP to release the seized cash to the DEA and, thus, that UHP had unlawfully transferred the funds. Additionally, the state district court concluded that UHP had failed to take one of the actions required by Utah Code section 24-4-104(1)(a) and therefore ordered UHP to return the funds to Mr. Savely.

UHP immediately stopped payment on the January 24, 2017 check sent to the DEA. In response, the DEA served UHP with a second federal seizure warrant on February 23, 2017, after which UHP requested that the state district court reconsider its initial ruling.

Savely challenged this move, claiming the state had jurisdiction over the seized cash and could not use equitable sharing to route around state law. The court agrees for the most part, but notes the initiative isn't the "model of clarity" and the government can present plausible arguments for federal jurisdiction over the cash, even with the lack of required charges at state level.

That being said, the court sides with Savely. It points to one clause of the law, along with its intent -- "to protect property owners" during forfeiture proceedings -- as evidence the state government (and its residents) were seeking to close the federal loophole that would have erased the protections it had enacted.

Importantly, the transfer provision expressly prohibits a district court from “authoriz[ing] the transfer of property to the federal government if the transfer would circumvent the protections of the Utah Constitution or of this chapter that would otherwise be available to the property owner.” UTAH CODE § 24-4-114(1)(d). This provision, along with the grant of in rem jurisdiction to the state district court over property held for forfeiture, ensures that the authority to seize and hold property for forfeiture under the Act is limited by the protections provided in the Act. This comports with the legislative intent and purpose of the Act.

The court concludes the state has jurisdiction over the seized cash, despite the DEA's belated involvement. As such, the cash must be returned to Savely because the state government failed to bring charges in 75 days.

A state district court has in rem jurisdiction over any property held for forfeiture under the Act. And property becomes property held for forfeiture, at the very least, when a seizing agency serves a notice of intent to seek forfeiture under the Act. Because Mr. Savely was provided with a notice of intent to seek forfeiture long before any federal seizure warrant was issued, we conclude that the state district court was the first to properly exercise in rem jurisdiction to the exclusion of any other court. Therefore, we reverse the state district court’s conclusion that it lacked in rem jurisdiction and remand for further proceedings consistent with this opinion.

"Consistent with this opinion" adds up this way: 1 seizure + 0 criminal charges = $500,000 returned to Savely. The intent of the state law is clear: protecting citizens whose property has been seized by the government. If the government can't find a reason to criminally charge the property's owner, the property has to be returned. Asking the feds to take over circumvents state protections.

Local law enforcement knows this. The law's effect was very noticeable. As Radley Balko notes in his post about Utah's back-and-forth forfeiture reform efforts, the elimination of federal forfeiture adoption hit local agencies right in the pocketbook.

The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF). In FY 2002, that number plunged to $3,357. The very next year, it was $0.

Since then, things have been loosened up a bit by legislators, but the 2000 initiative still prevails 18 years later. Local cops can't use the federal government to launder forfeitures in exchange for a 20% cut. If the state seizes the property, it still has to bring criminal charges if it hopes to keep it. That's the way it should be. Fortunately, the unclear law is being interpreted by the state's highest court as a bulwark against government abuse. Closing the federal loophole and requiring criminal charges fulfills the intent of the law and makes it far less likely forfeiture programs will be abused.

Filed Under: asset forfeiture, civil asset forfeiture, dea, forfeiture, kyle savely, utah

Supreme Court Agrees To Take Petition Asking Whether Eighth Amendment Protections Apply To Asset Forfeiture

from the chance-to-reshape-forfeiture-programs-from-the-bench dept

The Supreme Court has agreed to take a case that may alter how states run their asset forfeiture programs. As it stands now, there's nothing unifying forfeiture policies across the nation and, under Jeff Sessions, the DOJ has reopened the federal forfeiture pressure valve, allowing state agencies to bypass recently-passed reforms.

But there's still something at the federal level that possibly affects state-level forfeitures. The question for the Supreme Court is whether or not a Constitutional protection overrides state laws. The case centers on the seizure of an Indiana resident's Land Rover after a drug bust. Tyson Timbs had purchased the $42,000 vehicle with funds from his father's life insurance. So, the vehicle was legally obtained with funds not even remotely linked to Timbs' drug dealing.

The state took it because Timbs used it to transport drugs on one of the controlled buys cops performed. It processed it as a civil asset forfeiture (rather than a criminal asset forfeiture) to get around the fact the fines and sentence didn't justify the criminal seizure of a $42,000 vehicle. A drug sale of $225 netted Timbs a year of house arrest and $1200 in legal fees. Then the state decided to take his car because why not.

That's what Timbs is challenging. The Eighth Amendment contains an Excessive Fines Clause. Timbs is hoping to have the court find the seizure of a $42,000 vehicle over $225 worth of drugs a violation of the Eighth Amendment. Considering the state levies a maximum $10,000 fine for the offense Timbs was charged with, a $40,000 seizure would appear to be excessive. But Timbs only batted .500 in Indiana courts.

[T]he trial court ruled against the government. Because taking Tyson’s car would be “grossly disproportional” to his offense—for which Tyson had already been punished—the trial court held that the forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Court of Appeals agreed. Tyson suffered from drug addiction, the court noted, but his only record of dealing was selling a small amount of drugs to undercover police. The court also noted the “financial burdens” that Tyson had already faced when he pleaded guilty. Taking his car on top of all that would violate the Eighth Amendment.

Then the Indiana Supreme Court stepped in. Breaking with at least 14 other state high courts, the Indiana Supreme Court ruled that the Eighth Amendment provides no protection at all against fines and forfeitures imposed by the states. Until the U.S. Supreme Court intervenes, the Indiana Supreme Court said, “We will not impose federal obligations on the State that the federal government itself has not mandated.”

As Timbs notes in his Supreme Court brief [PDF], the court needs to take action to resolve splits not only at the federal level, but across the many state courts. There's no unified judicial theory of Eighth Amendment protections against civil asset forfeiture and this is only allowing states where forfeiture abuse is prevalent to become more abusive. The DOJ's escape hatch certainly isn't helping. A decision in Timbs' favor won't be a drastic alteration but it will provide another avenue of attack for those seeking to challenge forfeitures.

It may also force law enforcement agencies to do what they say they do, rather than what they actually do. They claim forfeiture is an essential tool for crippling huge criminal organizations and drug cartels. In reality, it's usually just a convenient way for agencies to enrich themselves at the expense of low-level dealers like Timbs and, worse, people who are never criminally charged.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, doj, indiana, legality, supreme court, tyson timbs

CBP Agrees To Hand Back Almost All Of The $58,000 It Stole From A 64-Year-Old Man At A Cleveland Airport

from the to-the-feds,-any-amount-of-cash-is-a-suspicious-amount-of-cash dept

A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings.

CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted.

It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal.

What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from.

Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money.

"They asked me some questions, which I could not understand as they spoke too quickly," according to Kazazi's declaration. "I asked them for an interpreter and asked to call my family, but they denied my request."

The CBP agents led Kazazi to a small windowless room and conducted multiple searches of him and his belongings, he said. According to Kazazi's declaration, the agents asked him to remove all of his clothing and gave him a blanket to cover the lower portion of his body. Kazazi said that a man wearing rubber gloves then "started searching different areas of my body."

After failing to find more cash hidden in the crevices of Kazazi's body, the CBP agents gave him a receipt for the money they were taking -- one with no dollar amount written in -- and handed out this fluff to the press when it came asking questions.

In a statement, a CBP spokesman said that "pursuant to an administrative search of Mr. Kazazi and his bags, TSA agents discovered artfully concealed U.S. currency. Mr. Kazazi provided inconsistent statements regarding the currency, had no verifiable source of income and possessed evidence of structuring activity," that is, making cash withdrawals of less than $10,000 to avoid reporting requirements.

The "artful concealment" was paper and the "inconsistent statements" can probably be chalked up to CBP's refusal to locate a translator. Cash spends better in foreign countries, especially those -- like Albania -- where banks aren't trusted and foreign currency preferable to the local version.

Following this seizure, the CBP then did nothing, apparently hoping the Kazazi family would never ask for the money back. It had 90 days to begin to process the forfeiture but it chose instead to give conflicting information to Kazazi (detailed in his son's declaration [PDF]) and push the family towards "settling" for only a portion of the funds seized.

The Kazazis chose to sue because, obviously, they don't trust the CBP to handle this honestly. First off, the CBP claims it took $57,330. Kazazi disputes this amount, stating he had $58,100 with him. The $770 difference may seem minimal, but it appears to another indicator of the CBP's untrustworthiness. According to Kazazi, he only took $100 bills. Therefore, a total of $57,330 is impossible. It almost looks as though the CBP took an unofficial service fee off the top before notifying the Kazazis of their right to dispute the forfeiture.

The Institute of Justice has stepped in to fight for Kazazis, like it has in many other asset forfeiture cases. As it points out in its lawsuit [PDF], CBP had until April 17 of this year to begin processing the forfeiture. It hasn't and federal law says unprocessed forfeitures that pass the 90-day expiration date must be returned in full to their owners.

Fortunately for Kazazi, this legal battle may be over already. Kazazi sued on May 31st. Following a conference with a district judge, the CBP has decided to return all of the money it took. Well, almost all of it.

The minutes of the proceeding says that customs officials told the judge that "they were beginning the process of tendering a check to Petitioner Kazazi in the amount of $57,330 plus interest."

There will be a little more legal wrangling because Kazazi wants back every cent the government took: $58,100. A bench trial has been scheduled, but it will be December of this year before his case is heard.

This whole debacle shows two things: asset forfeiture ain't dead yet, despite its high-profile reputation for being thinly-disguised theft. And it shows the government can be forced to do the right thing without having to undertake a long and expensive legal battle. The turning point here appears to be plenty of negative coverage from the press, rather than the legal filing. But the lawsuit helps, as it makes it crystal clear the CBP is violating federal law by holding onto it past the 90-day deadline for processing.

Filed Under: asset forfeiture, cash, cbp, civil asset forfeiture, rustem kazazi, theft

Judge Hands Back $92,000 Taken From Musician By Cops For Failing To Buckle His Seatbelt

from the more-of-this-please dept

Another awful story of civil asset forfeiture abuse comes to us via German Lopez at Vox. But at least this one has a happy ending. The beginning, however, is anything but happy. Musician Phil Parhamovich made the mistake of driving in Wyoming without his seatbelt buckled. A click-it ticket in Wyoming usually runs about $25. In Parhamovich's case, it cost him nearly $92,000.

Phil Parhamovich had been waiting for this moment for a long time. The 50-year-old had spent years restoring and selling houses, cars, and musical instruments, often clocking 12-hour workdays, to save up more than $91,000. And now it was all going to pay off: He would buy a music studio in Madison, Wisconsin, where Nirvana and the Smashing Pumpkins recorded songs — not just fulfilling a dream of owning a monument to grunge rock, but also giving him a space to work on his own career as a musician.

Then came the police stop this past March. By the time it was over, police in Wyoming would take all of Parhamovich’s money — the full $91,800. Parhamovich, who has no criminal record, was not accused of or charged with a serious crime; he only got a $25 ticket for improperly wearing his seat belt and a warning for “lane use.”

But Wyoming law enforcement officers found and eventually seized the $91,800 in cash, as it was hidden in a speaker cabinet — by getting Parhamovich, under what he claims was duress, to sign away his interest in the money through a waiver.

With all apologies to Parhamovich -- who got screwed by the civil asset forfeiture system -- Wyoming law enforcement couldn't have asked for a better mark to come passing through their state. Parhamovich disavowed ownership of the money and signed a waiver stating the same thing. That's a perfect storm of complicity.

But while we're still being fair, most Americans aren't aware law enforcement officers regularly engage in pretextual traffic stops for the sole purpose of warrantless searches and seizures. According to the musician, the cops made it sound like cash was just another form of illegal contraband.

At one point, the officer asked Parhamovich if he had a long list of items in his car — specific drugs, a weapon, a large amount of cash, and so on. With the way the question was phrased, Parhamovich said he was worried that answering “yes” would make things worse, since it could wrongfully imply he had illegal drugs in his car. He also became concerned, since he was questioned about cash and illegal drugs at the same time, that it was potentially against the law to carry so much cash at once. (It is not.)

Cops looking to directly profit from traffic stops rely on citizens being unfamiliar with local laws and their legal rights. (Perversely, they rely on not knowing the law when being sued for violating rights.) Hence the highway patrol tendency to pull over out-of-state drivers. The officer here went poaching. He even had a property waiver form written up and ready to go -- something that doesn't seem like it should be a part of day-to-day traffic law enforcement.

In the end, law enforcement took Parhamovich's $91,800 and wrote him a $25 ticket. Parhamovich -- with the assistance of the Institute for Justice took the state to court to get his money back. And Parhamovich has won, somewhat unexpectedly.

A Wyoming judge ordered the state Friday to return nearly $92,000 seized from a musician during a traffic stop that resulted in no criminal charges or even an arrest, according to the man’s attorney.

Attorney Dan Alban said Judge Peter Arnold ordered the state on Friday to return the full amount to Phil Parhamovich, an unexpected move in a case that began more than eight months ago. The First Judicial District Court in Wyoming confirmed the judge’s order.

The ruling hasn't been made available so it's unclear what the legal rationale for the release was -- other than possibly "this is bullshit." With a signed waiver and the disavowal of ownership, it should have been open and shut. Perhaps the state could find nothing to connect the money to illegal activity or screwed up somewhere procedurally. All that really matters to the victim of Wyoming's thieving cops is his money will be returned to him.

Filed Under: asset forfeiture, cash, civil asset forfeiture, phil parhamovich, wyoming

DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest

from the nothing-good-to-say-but-all-the-space-in-the-world-to-say-it dept

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]

As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff’s notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff’s victims.

To be clear, assets taken from Madoff were seized via criminal asset forfeiture, which requires a conviction. Rosenstein's decision to open with this glosses over this difference, allowing the reader to think civil/criminal asset forfeiture are barely distinct entities. His op-ed doesn't actually say how much of that $3.9 billion came from civil asset forfeiture -- a process that has nothing to do with a criminal prosecution like Madoff's.

From there, Rosenstein says the expected stuff: civil asset forfeiture is just a way of crippling criminal enterprises, despite it being predicated on one-sided accusations about the allegedly illegitimate origin of seized property and tied to a judicial process that discourages citizens from attempting to reclaim their possessions.

The opening paragraph also makes it appear as though civil asset forfeiture is often used to return unlawfully obtained assets to victims of crime. Nothing could be further from the truth. While this occasionally happens in criminal forfeiture cases, the lack of criminal charges in civil forfeiture cases makes it extremely unlikely there will be any "victims" to "return" seized assets to.

In most cases, the agency performing the seizure is allowed to directly benefit from it. Whether it's used to pay for new equipment or offset investigatory expenses, seized property rarely ends up back in the hands of victims.

But you won't be hearing any of that in Rosenstein's pro-forfeiture pep talk. Instead, he presents civil forfeiture as a skillfully-wielded scalpel, rather than the property-grabbing cudgel it actually is.

Some critics claim that civil asset forfeiture fails to protect property rights or provide due process. The truth is that there are multiple levels of judicial protection, as well as administrative safeguards.

First, money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed. That is the same standard needed to justify an arrest.

Second, if anyone claims ownership of the property, it may be forfeited only if the government presents enough evidence in court to establish by a preponderance of the evidence it was the proceeds of crime, or was used to commit a crime.

Courts apply the “beyond a reasonable doubt” standard only in criminal cases. That high threshold of proof is appropriate when the stakes involve a person’s criminal record and potential imprisonment. But all other lawsuits, no matter how much money is at issue, use the normal civil standard. There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds.

First, the money can be seized for any reason, with justification supplied after the fact. Stating law enforcement needs "probable cause" to seize property is simply untrue. Rosenstein knows this because he points out the standard of evidence needed to secure the forfeiture is actually lower than the standard needed to secure a warrant: "preponderance of evidence." If probable cause were actually needed, drivers and travelers wouldn't have to worry nearly as much about having their cash seized by highway patrol officers during traffic stops or by DEA agents while passing through airport security. Pretextual stops and scanning passenger manifests for one-way ticket purchases are no one's idea of "probable cause."

Furthermore, if the standard of evidence needed prior to seizure was actually the same as the requirement to secure an arrest warrant, more seizure victims would be arrested. But they're not. They're usually free to go, minus whatever law enforcement officers have taken from them.

As for the last part, Rosenstein is right: we shouldn't need to change the standard of evidence in civil cases. But that's not where the change is needed. If property is being taken from criminals -- as Rosenstein and other forfeiture supporters claim -- then all seizures should be of the criminal variety: a conviction should be required. This leaves civil lawsuit evidence requirements unchanged… just the way Rosenstein prefers it.

Then there's this, which Rosenstein offers up as some sort of proof that the government is in the right at least 80% of the time when it takes property from citizens without charging them with crimes:

About 80% of the time, nobody even tries to claim the seized assets.

Well, let's look at this. Rosenstein talks billions in his Madoff anecdote, but the reality of civil asset forfeiture is a majority of seizures fall well under the $1,000 mark. Considering the long, uphill battle facing forfeiture victims, anything short of several thousands dollars usually isn't worth the effort. In those cases, the expenses of challenging the forfeiture would outweigh the the value of the property recovered. This is a stupid stat that proves nothing.

The years of documentation of widespread forfeiture abuse by law enforcement agencies? It's reduced to this by the Deputy Attorney General:

To be sure, law-enforcement officers sometimes make mistakes.

Come on, Rod. This is just embarrassing. You want the private sector to trust you and get on board with DOJ encryption key escrow, etc.? Maybe stop lying to the public. Maybe discontinue this gross minimization of repeated, abusive law enforcement behavior. Maybe do something more to curb forfeiture abuse. Hell, try doing anything at all. The only thing the DOJ has done in recent months is open back up the federal forfeiture adoption program -- something that has been abused for years by law enforcement agencies looking to route around restrictive state laws.

It's unsurprising the DOJ would argue publicly that civil asset forfeiture is A-OK and good for America. It's just unsettling that the arguments are this bad.

Filed Under: bernie madoff, civil asset forfeiture, crimes, doj, rod rosenstein