Use A Landline To Talk About Criminal Activity? The Government Can Seize The House Around It

from the extreme-home-takeover dept

The Intercept has obtained a leaked asset forfeiture guide for seizures performed by ICE. (It has, unfortunately, chosen not to share the original document. Then again, the last non-Snowden leak it published appears to have helped out the document's source.)

For those familiar with the process of civil asset forfeiture, the contents of the guide are mostly unsurprising. Despite the document dating back to 2010, ICE did confirm the version seen by The Intercept is its most recent guidance. ICE is allowed to seize property without bringing charges or securing convictions -- something still permitted by federal law (your state laws may vary) and greatly encouraged by the new head of the DOJ, Jeff Sessions.

What is surprising about the document is how much emphasis is placed on the seizure of real estate. As Ryan Devereaux and Spencer Woodman point out, ICE's forfeiture teams are pretty much property flippers, albeit ones working with the undeniable advantage of making zero initial investment.

Much of the handbook is devoted to describing the process of seizing real estate — homes, farms, and businesses — and it is in these pages that the dual priorities of financial gain and law enforcement objectives become most apparent. While the handbook contains little discussion on how to utilize asset forfeiture to maximize crime-fighting outcomes, there is extensive discussion of how agents should painstakingly determine whether a property is valuable enough to make seizure worthwhile

[...]

More than a dozen pages of the document describe an important — if perhaps surprising — role of AIRG agents: as real estate appraisers. Using the example of “houses used to store narcotics or harbor illegal aliens,” the manual walks agents through a comprehensive process of assessing homes and landed properties to determine the financial appeal to ICE of acquiring such real estate.

If ICE can obtain a warrant to search the property it plans to seize, it will usually send a private real estate appraiser along during the search. AIRG [Asset Identification and Removal Group] agents apparently ballpark property values using public databases -- something that tells ICE whether or not it should move forward with the forfeiture.

As is the case in most civil forfeiture operations, the connecting tissue of criminal activity doesn't need to be much more than gossamer-thin.

The manual instructs agents seeking to seize a property to work with confidential informants, scour tax records, and even obtain an interception warrant to determine whether “a telephone located on the property was used to plan or discuss criminal activity” in order to justify seizing the property.

You would think the phone would be the "guilty" property -- at least as far as you can follow forfeiture's twisted logic. Apparently not. According to ICE's guidance, the entire house around the landline is equally culpable.

The handbook also points out civil forfeiture is preferable to criminal forfeiture, thanks to its general disdain for due process. The key factor is the conviction itself -- something you'd think a law enforcement agency would value over seized property. In criminal proceedings, seized property is generally returned if the charges don't stick. Not so with civil forfeiture. ICE's guidance says when in doubt, go civil. That way the agency may still keep something, even if the alleged perp goes free.

ICE is by far the biggest contributor to the DHS's total forfeiture take. This can be expected to grow with the new administration's intense focus on illegal immigration. As with any government program experiencing sudden growth, one can expect an exponential leap in abuse.

Filed Under: asset forfeiture, civil asset forfeiture, guidelines, ice, legalized theft, rules

Supreme Court Won't Review US Government Getting To Steal All Of Kim Dotcom's Stuff

from the that's-unfortunate dept

While the "main event" in the never-ending case of the US Justice Department against Kim Dotcom continues to grind its way ever so slowly through the wheels of justice, one element has basically concluded. And this was the part that should concern you even if you think that Kim Dotcom was completely guilty of criminal copyright infringement. The issue here is that as part of the arrest of Dotcom and his colleagues, the US "seized" many of his assets. Now, when the government seizes assets, it's a temporary thing. They have a certain period of time to hold onto it. Afterwards, they either need to give those assets back or file a separate case to attempt to "forfeit" those items (i.e., keep them forever). Here's where things get a little bizarre. Because Dotcom was fighting extradition in New Zealand, the "deadline" for the US to continue holding the seized assets was approaching -- so they filed the separate case against his stuff. Because it's a civil asset forfeiture case, the case is literally against his stuff, and not against Kim Dotcom (and, yes, this is as weird and nonsensical as it sounds). But there was a twist: because Dotcom was still in New Zealand, the Justice Department said that he was a "fugitive" and thus couldn't even protest the forfeiture of his stuff. Unfortunately, both the district court and the appeals court agreed.

Again, let's be totally clear here -- because sometimes people get so focused on their belief that because Megaupload enabled copyright infringement that this is somehow okay. But here we have a situation where before anyone has been found guilty of anything, the US government was given permission to take and keep all of Kim Dotcom's stuff. This should concern you even if you think Dotcom deserves to rot in prison, because there's a clear absence of due process here. If Dotcom is eventually found to be not guilty -- that won't have any impact on this. The US government still gets to keep his stuff (or, well, whatever it can get its hands on).

So the issue here is not whether or not Kim Dotcom is guilty of copyright infringement. It's whether or not the US government can just take his stuff before that other process has played out. That's a problem.

And, unfortunately, it's a problem that the Supreme Court will not be reviewing at this time. Even as some of the Justices have expressed concerns about civil asset forfeiture, apparently they didn't want to take on this particular case. And, maybe that's okay, because maybe, as with many people, they wouldn't have been able to separate out the copyright question from the civil asset forfeiture question from the fugitive disentitlement question -- all of which are separate but important.

Filed Under: civil asset forfeiture, copyright, fugitive disentitlement, kim dotcom, scotus, supreme court
Companies: megaupload

Federal Judge Says Indiana's Vehicle Forfeiture Laws Are Unconstitutional

from the state-cops-earn-a-federal-permaban dept

More good news on the forfeiture front: Nick Sibilla of forfeiture watchdogs Institute for Justice reports a federal judge has declared one of Indiana's civil asset forfeiture laws unconstitutional.

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

The case springs from an arrest and seizure made last September when the plaintiff was pulled over by Indianapolis law enforcement. Finding a small amount of marijuana on the driver, the Indy PD felt justified in claiming his entire vehicle as its own. Not content to be screwed out of a car for his personal use stash, Leroy Washington enlisted the help of defense lawyer Jeff Cardella. They filed a class action lawsuit challenging the state's forfeiture law on behalf of the hundreds of drivers whose cars have ended up in the possession of Indiana law enforcement -- all without being convicted of any criminal activity.

Seizing cars is something Indiana law enforcement does frequently. According to the stats quoted by the judge, the state seizes around 11 cars a week. Once the vehicles are in the law enforcement's possession, drivers are forbidden from seeking to regain their property until the state says it's OK to do so. And it's generally in no hurry to do so. It can hold the vehicle for six months before starting forfeiture proceedings, forcing car owners to find other transportation while their vehicles sit in impound lots.

As the judge notes in the decision [PDF], this law -- which locks car owners out of the loop for months -- poses significant problems for people who haven't been convicted of criminal activity.

Following a seizure, the government may hold a vehicle without taking any action for 180 days, or for 90 days after receiving written notice from the owner demanding the vehicle's return. Ind. Code § 34-24-1-3. During this timeframe, the owner of the property has no ability to challenge the seizure, because replevin is prohibited by the statute. Ind. Code § 34- 24-1-2(c) (“Property that is seized under subsection (a) … is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.”).

Therefore, three to six months may elapse, during which time the owner is deprived of the use of his vehicle, and the government is not required to take any action whatsoever regarding the seized property. It is particularly problematic that the statute specifically bars replevin. Absent another statutorily created mechanism to challenge the deprivation, replevin would provide a vehicle owner’s only recourse. But that avenue has been specifically foreclosed by the statute. During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members. It is evident to this Court that a three- to six-month deprivation is a lengthy one, and could cause significant hardship to the individual whose vehicle is seized.

[...]

Second, unlike some states’ statutes, Indiana’s forfeiture provisions do not allow for interim relief during the pendency of proceedings. Such interim relief could include returning the seized vehicle subject to the posting of a surety bond or other adequate security. [...] The absence of an opportunity for interim relief particularly burdens individuals who lack the financial resources to secure another vehicle during the pendency of proceedings, or who are unable to access reliable public transportation.

As the court concludes, this process -- enabled by state law -- makes a mockery of Constitutional rights.

[I]ndiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.

This is exactly the conclusion Indiana's law enforcement didn't want the court to reach. In hopes of heading off the lawsuit (and this precedent), the state argued the return of Washington's vehicle rendered the case moot. The court doesn't care for this dodge, and points out it's exactly the sort of move anticipated both by Washington's earlier briefs and the court itself:

The Court concludes (as it did in its order denying Defendants’ Motion to Dismiss) that Washington has established that the inherently transitory doctrine applies here. First, it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class. The statute itself limits the pre-forfeiture period to 180 days. As the procedural history of this case illustrates, despite a district court’s best efforts to provide prompt resolution to all pending matters, the realities of a district court’s docket and case load (along with the possibility that the parties may need additional time to conduct discovery related to class certification) may result in motions to certify being unresolved for longer than 180 days. In this case, Washington’s Motion to Certify a Class was filed on November 2, 2016—more than 180 days before the issuance of an order resolving it. [Filing No. 3.] And, as the State retains discretion to return the seized property to its owner at any time, it could attempt to moot any named plaintiff’s claim by simply returning the property after the plaintiff files a motion to certify.

It further points out mooting Washington wouldn't moot the class action, which includes everyone similarly situated -- both now and in the future.

Second, there will be a constant class of persons suffering the deprivation complained of in the Complaint. Defendants have not indicated any intention to cease enforcement of the statute, and Defendants do not dispute that at least 169 vehicles have been seized for forfeiture between November 2, 2016 and February 13, 2017.

The end result is a federal injunction preventing Indiana law enforcement from seizing vehicles without better recovery routes available for car owners. Since the adjoining clause walking all over the Constitution hasn't been rewritten yet, this pretty much means the end of vehicle seizures until that's addressed by the legislature. Considering state lawmakers were already considering forfeiture reforms, this might mark the permanent end of taking cars away from people without obtaining corresponding convictions.

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

House Passes Amendment Rolling Back Jeff Sessions' Civil Asset Forfeiture Expansion

from the LOAD-LAST-SAVE? dept

Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons.

Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms.

He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen.

Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens.

Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him.

In a stunning move, the House of Representatives on Tuesday approved an amendment to the Make America Secure and Prosperous Appropriations Act that will roll back Attorney General Jeff Sessions’s expansion of asset forfeiture.

Amendment number 126 was sponsored by a bipartisan group of nine members, led by Michigan Republican Rep. Justin Amash. He was joined by Democratic Reps. Ro Khanna of California; Washington state’s Pramila Jayapal, a rising progressive star; and Hawaii’s Tulsi Gabbard.

If this passes the Senate untouched, the amendment will roll things back to 2015 -- once again prohibiting federal adoption of local forfeitures. It would make state and local agencies play by the rules set for them by their legislatures, rather than allow them to bypass protections put in place to discourage abuse of programs loaded with the most perverted of incentives.

Filed Under: asset forfeiture, civil asset forfeiture, congress, house, jeff sessions

Saying Someone Might Do Something Illegal With Cash Isn't Enough For Gov't To Seize It, Court Rules

from the by-any-means-unnecessary dept

The government loves taking people's money. It likes it so much it gets pretty weird about it. Even considering all we've covered here on the subject of forfeiture, the legal theory deployed by the government in this case is astounding. From the Ninth Circuit Court of Appeals decision [PDF]:

The panel reversed the district court's judgment of civil forfeiture of $11,500 under 21 U.S.C. § 881(a)(6) from claimant Charles Guerrero, and remanded for a new trial.

When Guerrero, through a friend, tried to post the $11,500 as bail for his wife, the government seized the cash. At trial, the government alleged two theories: that the money was proceeds from the claimant's drug deals, and that the claimant used or intended to use the money to facilitate drug transactions.

Charles Guerrero and his wife were no angels. But neither were they high-level drug dealers. Both apparently had crippling heroin addictions and engaged in a small amount of dealing to ensure the incoming flow of heroin.

But that's not enough to excuse the government nabbing bail money under the theory it probably came from drug dealing or -- more spuriously -- that it might have been used to purchase drugs if it hadn't been spent on bail.

Guerrero had his friend take the cash to pay the bail because Guerrero had no valid ID. Guerrero claims he had about $14,000 in cash in his home obtained from insurance settlements and the sale of a vehicle. The government made its own claims, based on the discovery of drugs in the vehicle Guerrero was sitting in, along with a dog that said, "Yes. That is drug money."

While Charles waited outside, Wood went to the MCDC’s bail window and told an officer he was there to post the cash to free Rosalie. Jail officials ran Wood’s records and discovered that he had a criminal history. Coupled with the fact that Wood was attempting to bail out a repeat drug offender with a wad of cash, this prompted jail officials to call Agent Guy Gino of the federal Department of Homeland Security. Agent Gino went to the MCDC, asked Wood a few questions regarding the origin of the $11,500, and requested permission to have a drug sniffing dog smell the currency. Wood agreed.

The dog (Nikko) alerted to a drug odor on the money. Agent Gino asked Wood if Nikko could sniff his car. Again, Wood agreed. On the way to the car, the group encountered Charles, who was waiting for Woods to come out of the jail. Charles objected to law enforcement searching the car but Wood nonetheless permitted Nikko to do so. Nikko alerted to a black bag in the vehicle—which, the officers later discovered, belonged to Charles—containing 3.6 grams of heroin. Officers also found an additional $2,971 in cash on Charles. Agent Gino arrested Charles and seized the drugs, the $2,971 found on Charles, and the $11,500 Wood had tried to post as bail.

The government seized it all. Guerrero challenged the seizure. The jury at the lower level let the government keep it. Guerrero appealed and the Ninth Circuit Court reversed on the issue of the $11,500. On remand, the government restated its assertions about the $11,500, claiming the Guerrero's had no proof the money had been obtained legally. Failing that, the government claimed the money -- even if obtained legitimately -- would only be used to purchase more controlled substances. Heads, I win. Tails, you lose. But not this time.

The Appeals Court will send this case back to the lower court a second time. As it noted during its first pass, there were genuine questions about the origin/destination of the $11,500, but it needed far more than the government's speculative assertions to make this call. Unfortunately, the lower court dismissed Guerrero's argument that the jury's split verdict allowed the government to punish him for thinking, rather than for what he actually did. The district court basically gave the government an unearned win, stating the money's origin was clean but its intended use wasn't.

This makes a mockery of due process, even more so than civil forfeiture already does. If someone socks away some cash intending to purchase drugs at some point, but then attempts to pay bills with it instead, the government could theoretically seize the cash before the bills are paid based on the person's arrest history, apparent drug dependency, etc. Given free reign, no one's money is safe, least of all those with criminal pasts.

Unsurprisingly, the court finds this theory of future "guilt" a violation the Eighth Amendment. Americans are supposed to be free of cruel and unusual punishments. Taking money from people because they might use it to commit a legal act in the future is cruel and unusual, especially when no actions have been taken indicating the cash is headed for an illegal destination. As the concurring opinion points out, the $11,500 was in process of being handed over to pay bail, making any illegal future use of that $11,500 impossible.

The court points out the law simply cannot be read the way government would like it to be. To do so would make any amount of cash seizable from anyone, simply because cash and the possibility for bad things to be done with it are both things that will always exist.

On its face... § 881(a)(6) contains no limiting principle and appears to apply whenever anyone, at any point in time, so much as thinks about using money to purchase drugs. One need not look any further than this case to realize how far the literal language of § 881(a)(6) could reach. The only evidence from which the jury could have concluded that the Guerreros intended to use the $11,500 for drugs shows that the couple were heavy heroin addicts who bought and sold drugs regularly. The government offered no specifics. Although it should surprise no one that an addict might think of spending whatever money he has to sustain his addiction, the Guerreros, so far as the evidence indicates, did not act on any such thoughts with respect to the $11,500. 4 In fact, at the time Agent Gino seized their money, the Guerreros had entrusted it to Virgil Wood, who was standing at a bail window in the MCDC asking to bail out Rosalie. Was there some possibility that, prior to Wood walking in the MCDC, the Guerreros intended to use the money for drug transactions? Of course. And is there a likelihood that if the Guerreros got the bail money back they would have used some part of it in the future for drugs? Again, it seems reasonable to answer “of course.” Does § 881(a)(6) reach either back in time to unrealized intentions or forward in time to speculative, inchoate plans? We think not.

Because the government's assertions came before the jury instructions, the forfeiture is being overturned on a procedural issue, rather than the governing statute being innately unconstitutional. The government will get a third chance to take $11,500 from the Guerreros, unfortunately. But it won't be able to argue quite as vehemently that a drug user's cash will only be spent on drugs.

Filed Under: 9th circuit, asset forfeiture, asset seizure, cash, charles guerrero, civil asset forfeiture

Multiple Legislators Looking To Neutralize AG Sessions' Rollback Of Federal Forfeiture Reforms

from the spike-strips-in-Sessions'-driveway dept

Jolly new Attorney General Jeff Sessions can't wait to put the screws to all those Americans who didn't have the sense to seek employment as law enforcement officers. Sessions wants harsher drug sentencing, less oversight, and the revival of programs abandoned in the 80s and 90s after they proved to have zero effect on rising crime rates.

Sessions, with the support of the Trump Administration, is rolling back the last administration's minor reforms to the 1033 program, which allowed local law enforcement agencies to obtain MRAPs, assault rifles, grenade launchers… whatever it took to defend the annual Mule Day Parade from terrorist attacks. Fun fact: these same items are apparently crucial components of flood rescue efforts in Houston, TX. [Cue shooting star and the words "The More You Know," soon to be riddled with bullet holes for startling MRAP-riding 1033 recipients with their sudden appearance…]

Asset forfeiture is coming back, too. Sessions has opened the federal loophole closed by his predecessor, allowing local agencies to give the finger to legislators and the people they serve as they bypass local reform efforts and cash in on other people's property. Sessions appeared to be this close to visible arousal when discussing the return of the Federal Forfeiture Loophole during a law enforcement conference in Alabama.

"I love that program," Sessions said. "We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?"

It's a rhetorical question, but only because Sessions is completely uninterested in the answer. What's wrong with civil asset forfeiture could fill several publications (and has!) but there's no talking to a man who's paid to revel in his deliberate ignorance. Putting people in jail is a concept wholly divorced from civil asset forfeiture, which is why it's been abused so often and so thoroughly. Once law enforcement was freed from the burden of actual proof, anything found anywhere near anyone possessing any amount of drugs was fair game for opportunistic officers. (Note: drug possession is completely optional! A dog can tell cops to take stuff, even if there are no drugs present. And you can't cross-examine a dog to see if it actually smelled drugs or just wanted to make its uniformed human happy.)

Sideloading forfeitures through the federal adoption program allows cops to bypass forfeiture efforts in several states. That would include those which have established a conviction requirement, basically eliminating civil asset forfeiture altogether. Unfortunately for Sessions, there are still a few troublemakers on Capitol Hill hoping to undercut the improper advances made by the new AG towards Americans' personal property. Civil rights watchdog FreedomWorks has compiled a list of amendments to the DOJ appropriations bill that would suck the fun right out of taking money from people just because.

Amendment 46 to Division C: Submitted by Rep. Tim Walberg (R-Mich.), this amendment would prohibit the use of funds from being used to carry out Attorney General Sessions' directive. The problem with this amendment is there were some minor positive aspects to the otherwise terrible directive, such setting a minimum value of $10,000 before seized property or cash can be adopted, requiring more proof of criminal activity, and doubling the time required for the property owner to receive notice of their rights. Because the amendment would prohibit funding for the directive, it would prevent the positive reforms from being implemented.

[...]

Amendment 70 to Division C: Submitted by Rep. Justin Amash (R-Mich.), this amendment would prohibit funds from being used to facilitate adoptive seizures of property or cash. The amendment references the directive from the previous administration, but it's tailored to address the specific activity, adoptive seizures, for prohibition. Presumably, it would leave the minor positive reforms in Attorney General Sessions' directive in place.

Amendment 87 to Division C: Submitted by Rep. Darrell Issa (R-Calif.), the amendment would reduce the appropriation for the Justice Department's Assets Forfeiture Fund by $10 million and increases funding by the same amount to the Debbie Smith DNA Backlog Grant Program, which deals with forensic kits in cases of sexual assault. The merits of the DNA program notwithstanding, the amendment doesn't directly address Attorney General Sessions' directive.

Amendment 127 to Division C: Submitted by Rep. Warren Davidson (R-Ohio), the amendment would prohibit the use of funds appropriated from being used for adoptive seizures. It's similar to Rep. Amash's amendment, but it isn't directly tied to a specific directive or order.

Unfortunately, the attachment of amendments to a "must-pass" bill doesn't guarantee any of the riders will make it past preliminary discussions. If they were allowed to make it out for a vote, FreedomWorks posits they have a good chance of passing. Given the support they might gather if allowed into the wild, these amendments likely have a slim chance of becoming anything more than excess weight to be shed in favor of more powerful lawmakers' pet boondoggles and President-pleasing riders.

But there's still a small chance Sessions' love affair with legalized theft will be broken up by interloping Congressmen. And that would be a joy to behold: AG Sessions having to turn away law enforcement agencies desperate to have the shaky seizures legitimized by federal adoption procedures… and Sessions having the power -- but not the funds -- to do it.

Filed Under: asset forfeiture, civil asset forfeiture, doj, jeff sessions

Former DOJ Prosecutor Steps Up To Defend DOJ's New Asset Forfeiture Rules

from the ask-not-what-your-country-can-do-for-you-etc. dept

Because someone had to, a former DOJ prosecutor has stepped up to defend the grand reopening of federal civil asset forfeiture abuse. George J. Terwilliger III has been given space at the Wall Street Journal to tell everyone why they're wrong about civil forfeiture. (Non-paywalled version here.)

As part of the new president's "law and order" focus, Attorney General Jeff Sessions opened up the federal outlet for forfeiture, allowing state and local law enforcement agencies to route around local restrictions by asking for federal "adoption" of their forfeitures. This reversed the policy put in place by Sessions' predecessor, which limited adoptions and forced local agencies to adhere to local rules.

Terwilliger, who has cut more than one federal forfeiture check, claims there's nothing wrong with civil asset forfeiture. And if there is, the solution isn't less of it.

Last week Attorney General Jeff Sessions restarted the longstanding practice, suspended by the Obama administration in 2015, of allowing state authorities to use federal forfeiture procedures. Mr. Sessions also introduced important safeguards to protect innocent people.

Still, critics challenged the practice’s reinstatement, citing instances when police wrongly took property from people who turned out to be innocent. The correct response to such concerns, however, isn’t to end asset forfeiture but to fix it.

Terwilliger offers no fixes. Instead, he heads down the Forfeiture Trail of Tears, reminding readers that drug dealers are bad and the things they do are bad.

Every day brings news of American families devastated by violence or drug use. Overdoses are a common occurrence. These tragedies are the work of criminal gangs that flood the streets with drugs and turn urban cores into combat zones. Such gangs exist for one simple reason: to make money.

No one arguing against civil asset forfeiture disputes these facts. All people are asking for is the government to secure a conviction before making off with someone's property. Terwilliger complains it's too difficult to tie cash and property to drug kingpins. Again, no one is saying this isn't difficult. But grabbing money, cars, houses, etc. from people without convicting them doesn't have more of an effect on them than taking their stuff and locking up their employees.

Whatever happened to using convictions as leverage? You know, encouraging someone to hand over info on higher-ups to secure a better plea deal? Apparently, this is no longer a significant part of the Drug War process. Instead, cops are just taking anything that isn't nailed down and telling themselves they're helping bring down kingpins, rather than just taking stuff because the law says they can.

Terwilliger -- still coasting right past the "fixing it" issue he brought up at the beginning of his op-ed -- claims the new rules are even more protective than the previous rules. The new rules force the government to move faster when filing for forfeiture, which will prevent agencies from sitting on someone else's property for months before giving them a chance to contest it. He also notes the DOJ will (theoretically) be less likely to "adopt" seizures under $10,000. But then he acts as though local agencies and the feds aren't all playing on the same team:

Scrutiny of these types of seizures by Justice Department lawyers will be ratcheted up to prevent and catch any overuse or abuse.

This seems unlikely. And the new rules already allow abuse by giving local agencies a way to skirt local forfeiture restrictions. The new rules also make future abuse more likely by encouraging local agencies to move ahead with forfeitures they normally wouldn't see a cent of, on the off-chance the DOJ will pick it up and cut them a check later.

Terwilliger also adds this fact-free assessment of civil asset forfeiture.

Police generally are careful and conscientious, including with asset forfeiture, which is why wrongful seizures are the exception. Smart law-enforcement leaders also know that if the practice is abused and innocent people are hurt, they could lose access to this valuable tool.

First, a low number of seizure challenges should not be viewed as a general indicator of the "rightfulness" of the majority of seizures. Challenging forfeitures is expensive and time-consuming. In many cases, the amount of money needed to challenge a forfeiture outweighs the value of the property seized. This is why a large majority of seizures nationwide weigh in at less than $1,000.

Second, there is no indication that law enforcement agencies/officials have done anything to curb forfeiture abuse. Not internally. There have been legislative reform efforts put in place in a number of states, but no one has taken this "valuable tool" away from law enforcement, no matter how much abuse has taken place. Finally, this directive makes forfeiture reform legislation mostly null and void, which means whatever was taken away by legislators as a result of law enforcement abuse, has been mostly reinstated by the DOJ's new rules. So, no law enforcement agency actually needs to worry about abusing themselves into a forfeiture-less future.

It's a bad op-ed supporting a terrible process -- a well-meaning program that's been abused past the point of recognition by law enforcement agencies. The nation as a whole is still 0-1 in national drug wars. Civil forfeiture hasn't changed that. All it's done is give the government more ways to take property from citizens.

Filed Under: asset forfeiture, civil asset forfeiture, doj, george terwilliger, jeff sessions, legalized theft

Asset Forfeiture: Killing Criminal Organizations With $16 Seizures

from the imperceptible-wounds dept

When asset forfeiture is pitched to Americans, law enforcement agencies roll up to press conferences with shiny, new seized vehicles and large stacks of cash. This public preening is meant to assure everyone that forfeiture kills drug cartels and cripples large criminal organizations. But the day-to-day reality is much different. Pathetic, even. Here's Eric Boehm of Reason on Utah's yearly forfeiture roundup:

Utah police seized more than $1.4 million in cash during 2016 and federal law enforcement agencies operating in Utah took another $1.3 million in assets from people suspected of crimes, a new report shows.

Sounds impressive until you start digging into how that $2.7 million was amassed. It wasn't a few large seizures with definite ties to criminal activity. It was a bunch of petty, nickel-and-dime seizures where the amounts taken could easily have earned by the property's owners through completely legal means.

Most forfeitures (69 percent) take place during traffic stops and most of the time only money is seized. According to the state report, cash was taken in 99 percent of forfeitures during 2016, with the median seizure amounting to only $1,031.

The paperwork alone for the following seizure easily surpassed the value of the property seized. And that's just in terms of office supplies. Add on the labor involved and what is even the point.

That means, in many cases, the amount seized was considerably less than four-figures. In one instance, the report shows, police took $16 from a motorist.

So much for the "don't drive around with large amounts of cash" solution. To avoid being robbed by opportunistic law enforcement, the mantra needs to be shortened to "don't drive." Or simplified to "don't leave the house."

Utah's smallball seizures aren't an aberration. Before the Washington DC Metropolitan PD was hit with minor forfeiture reforms, it also believed no amount of cash was too small to be seized. It racked up nearly $3 million in seizures slowly and steadily from citizens who went on to sue the department.

Altogether, the nearly 1,400 claimants in the class action lost almost $700,000 to forfeiture, so the settlement will restore roughly three-quarters of what was taken from them. Yet the claimants represent just 14 percent of those affected by this particular D.C. forfeiture policy. Over a six-year period, the Metropolitan Police Department seized a staggering $2.9 million from these owners collectively.

Among the owners represented in the lawsuit, the median amount of cash seized was a mere $120. In fact, the MPD seized as little as $1 from some owners. There is little indication trivial amounts of money can be plausibly tied to the drug trade, noted Sean Day, who was co-counsel on the class action.

These low dollar amounts discourage owners from seeking the return of their property. In some places, the fee just to file a motion for return is higher than the amount taken. Even the median seizure in Utah (~$1,000) is easily dwarfed by filing fees and the costs of legal representation. It would be ludicrous to believe officers aren't aware of these facts when they seize cash.

It's hard to see how civil asset forfeiture benefits society. It doesn't take criminals off the street because criminal charges are rarely filed. It doesn't put criminal cartels out of business because the few hundred dollars lifted off random people likely isn't directly tied to these organizations -- and if it is, the hit is so small an organization won't feel it.

Law enforcement agencies fight reform by claiming it will harm taxpayers if the agencies are forced to rely solely on general funds (something with actual oversight) to pay officer overtime and purchase equipment. But the alternative is even worse: agencies and officials are arguing it's OK to tax certain citizens the amount of cash they happen to have on them when interacting with police officers. It's a preposterous argument that says law enforcement agencies not only shouldn't be expected to play by the same public funding rules as every other agency, but will actually be unable to perform their basic functions without a second stream of income.

Filed Under: asset forfeiture, civil asset forfeiture, law enforcement, stealing

DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

from the Sessions-taking-it-back-to-the-old-school-cause-he's-an-old-fool dept

As threatened during comments to an association of district attorneys, Attorney General Jeff Sessions is bringing back asset forfeiture. Specifically, Sessions is loosening the restrictions placed on federal adoption of local seizures by Eric Holder during the last years of the Obama presidency. Holder's directive prevented local agencies from routing cash or vehicle seizures through the feds to dodge local rules. That's all over now. An order [PDF] and directive [PDF] issued by the DOJ are welcoming local law enforcement agencies to once again skirt restrictive state forfeiture laws by asking the DOJ to "adopt" their seizures.

On July 19, 2017, the Attorney General issued an Order allowing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement (referred to in the order as "federal adoptions"). Under the Attorney General's Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.

"Conduct giving rise to the seizure" almost makes it sound as though the federal government is limiting this to criminal asset forfeiture, which comes as the result of a conviction. Nothing could be further from the truth. In practical terms, this allows cops to say they smell the odor of drugs (or ask their dog's opinion) before hauling away an uncharged citizen's personal effects -- mainly cash, since it's easy to carry and difficult to prove its legal origin.

Multiple states have passed legislation curbing civil asset forfeiture. Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions by stating anything considered a federal crime (like drug trafficking) can be used as an escape hatch to ensure these agencies keep at least part of the property they've taken.

Sessions is promising this won't be abused. Given Sessions' comments on civil forfeiture, it's hard to imagine a case where he'd consider a seizure abusive, but there is a limited safeguard built into the new directive.

Adoptions of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney's Office first concurs.

I wouldn't read too much into this provision. For starters, it includes the word "may" in the first sentence, which means the DOJ will be able to waive these restrictions whenever it feels like it. Seizures can still be effected "incident to an arrest," which further undermines the conviction requirements put in place by fourteen states.

Forfeitures under $10,000 need more protection, not another outlet for abuse disguised as a "safeguard." Most cash seizures are under $10,000. Forfeiture reform laws tend to target those, as they're most often abused. AG Sessions is leaving it up to US Attorneys' offices to make the final determination.

Those over $10,000 tend not to be as much of a problem, but now there won't be any close cases. Federal adoption is pretty much guaranteed, which will encourage law enforcement to spend more time looking for expensive seizables than real criminal activity.

Then there's this statement, made by Sessions in his announcement of the resumption of federal indifference to individual property rights.

Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

This goes past simple disingenuousness into the land of deliberate obtuseness. The absence of challenges is not the evidence of minimal forfeiture abuse. Fighting forfeiture is expensive and time-consuming. In most cases, it's futile. This is why so many seizures are $1,000 or less. The lower the dollar amount, the less likely it is someone will fight to get it back. As was pointed out by John Jackson on Twitter, this is like saying all fatal shootings by police officers are justified because not a single victim has filed a sustained complaint.

Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions. These reactions hew closer to the Republican party line -- small government, less regulation. For some reason, though, many conservatives seem to think expansions of government power and regulation is just fine when it comes to law enforcement or national security. This is the only reason the president's AG pick isn't facing more criticism for overriding states' reform efforts.

Filed Under: civil asset forfeiture, doj, forfeiture, jeff sessions, law enforcement

DOJ Boss Promises The Return Of Everything That Didn't Work During The Last 40 Years Of Drug Warring

from the throwback-Thursday-now-24/7 dept

Attorney General Jeff Sessions isn't much interested in the "justice" side of the Department of Justice. Instead, it appears he'd like to throw on his letterman's jacket and head back to his glory days as a hard-nosed, 1980s-vintage drug warrior. Things were better when Sessions was a federal prosecutor in Alabama, ringing up drug convictions at a rate four times the national average.

The word "reactionary" is thrown around a lot when describing Trump and his cabinet. But in Sessions' case, the term fits. Violent crimes rates have fallen steadily since the mid-1990s. Meanwhile, drug prices have dropped and purity has increased, despite four decades of harsh enforcement and trillions of dollars being thrown at the problem. Devil weed -- gateway drug and longtime conspirator in the violation of American women by filthy non-whites -- is now a socially and medically-accepted drug, legal in several states.

But there are violent crime increases in a few major cities. He's not sure what's to blame for this potential historical blip, but he has several theories. It might be soft-on-drugs Obama-era policies embraced by his predecessor's DOJ. It might be a lack of respect for law enforcement, which Sessions feels is a failure of the American public, rather than the failures of those who serve them. It might be rambunctious legislators scaling back asset forfeiture all over the country. Whatever it is, the current course needs to be reversed and the policies that failed for multiple decades be allowed to fail again.

Where else would Sessions espouse his "brave new old world" plan than standing over the desiccated corpse of a federally-funded program that did fuck all to curb drug use by teens and tweens: the 30th D.A.R.E. (Drug Abuse Resistance Education) Training Conference.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles. I believe that DARE was instrumental to our success by educating children on the dangers of drug use. I firmly believe that you have saved lives. And I want to say thank you for that. Whenever I ask adults around age 30 about prevention, they always mention the DARE program. Your efforts work. Lives and futures are saved.

Sessions can believe anything he wants about the DARE program, but the fact is it had almost zero impact on reducing drug use by children. Multiple studies of the program suggest zero impact is the best possible outcome. At worst, the program was viewed as ridiculous by students and actually introduced them to substances they weren't previously aware of. It often inspired curiosity. It rarely inspired lifelong abstinence.

But Sessions wants a bigger, better drug war -- one not constrained by logic, compassion, or mountains of evidence showing the war has been a catastrophic failure. Sessions hints we need more violence from our law enforcers because drug dealers are violent.

We know drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. There is no doubt that violence tends to rise with increased drug dealing.

As Scott Greenfield pointed out, if drugs were legal, you could file a lawsuit to recover debts -- a process far less likely to result in dead bodies.

Stats are spun to fit the narrative:

Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime—which had been decreasing for two decades—suddenly went up again. Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

And yet, the violent crime rate remains at historic lows. Sessions sees a spike as a trend even though the numbers don't agree with him. In another speech, he specifies which year he's referring to:

In 2015, we as a nation suffered the largest single-year increase in the violent crime rate since 1991, and the largest jump in the murder rate since 1968.

But even the FBI can't buttress the AG's dark narrative.

According to the report, there were an estimated 1,197,704 violent crimes committed around the nation. While that was an increase from 2014 figures, the 2015 violent crime total was 0.7 percent lower than the 2011 level and 16.5 percent below the 2006 level.

The Sessions Drug War Wagon plows on, focused on preaching to the converted and riling up the most ignorant legislators and voters. At event after event, Sessions does everything but hand out laced Kool Aid and visions of a heavily-policed afterlife. Facts are out; verbal y-axis distortions are in.

The preliminary data for the first half of 2016 showed further increases, with large cities seeing an average increase in murders of nearly 22 percent compared with the same period the year before.

This spike in violent crime is not happening in every neighborhood or city. But the trend is real and should concern us all. It must not continue.

A spike is a trend in the eyes of AG Sessions, whose narrative conflicts with the FBI's findings. This is a spike -- compared year-to-year -- but one that can't even bring crime levels back to where they were a decade ago, much less the sky-high rates of the 80s and 90s when Sessions was prosecuting the hell out of Alabama.

Hence the return of asset forfeiture, presumably with enough force to overcome legislative resistance. From the same speech to the National District Attorneys Association:

In addition, we hope to issue this week a new directive on asset forfeiture—especially for drug traffickers. With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.

Sessions mentions criminals, but criminal charges have never been an integral part of the forfeiture process. The government likes taking stuff, but has less of an interest in proving the property owner is actually a criminal.

A new era of punitive justice is upon us. One that prefers prosecutions to prevention and harsh sentences to deterrents less likely to permanently ruin someone's life.

I recently sent out my directive on charging and sentencing. It is sound law and policy. Assistant U.S. Attorneys will simply be expected to charge the most serious readily provable offense. If that would be unjust, prosecutors can seek a waiver approval from a designated supervisor without Washington.

In short, we have ended the policies that handcuffed our federal prosecutors.

There will apparently be enough handcuffs for everyone else.

This is a frustrating turn of events. The new DOJ will elevate law enforcement officers and prosecutors above the people they serve. Everything that didn't work for three decades straight will be making a comeback. And if that fails to turn things around, I'm guessing it will be blamed on the media, anti-police sentiment, or whatever convenient scapegoat happens to be on hand when the blowback begins.

Filed Under: civil asset forfeiture, dare, doj, drug war, jeff sessions, justice department