FBI Decides It's Finally Time To Do A Terrible Job Of Defending Civil Asset Forfeiture

from the G-men-say-it's-totally-legal-and-whatnot dept

Perhaps sensing the wave of civil asset forfeiture reform might eventually come crashing against the seized beach houses of the federal government, the FBI has decided to post a defense of the oft-abused process at its website.

The post speaks in warm terms about federal partnerships with state law enforcement agencies -- partnerships often abused by local authorities to route around restrictive state laws governing forfeiture. Of course, there's no mention of this particular facet of federal partnerships in the FBI's post. Instead, the post does all it can to portray it as a legitimate tool of law enforcement, rather than the analogue for legalized theft it's become.

The FBI tries to spin this as a limited-use tool that only affects convicted criminals. But even in its defense of the process, it can't help but enthuse about the near lack of limitations it enjoys.

Many—though not all—federal crimes have forfeiture provisions, but just about every law the FBI is charged with enforcing has some forfeiture aspect—from organized crime activities, financial frauds, drug trafficking, and cyber crimes to public corruption, child pornography, human trafficking, and terrorism.

Not "Just For Drug Dealers™," as so often seems to be the case. All sorts of criminal acts -- even those committed with zero criminal intent -- can result in people (or their parents, relatives, roommates, etc.) losing their property to the government. How many laws allow for forfeiture? The FBI doesn't say, but it's probably in the thousands. Here's a recent federal criminal law count:

There are at least 5,000 federal criminal laws, with 10,000-300,000 regulations that can be enforced criminally.

"Many" is the word the FBI uses, so it's not just the rogue's gallery they trotted out in defense of the controversial process. It also can be owners of small restaurants or guitar manufacturers or whoever runs afoul of a few hundred thousand federal regulations.

But don't worry, says the Feeb, we have to do stuff to take stuff.

In all Bureau cases, the burden of proof to demonstrate that the property in question is forfeitable under the applicable federal law rests with the government.

This looks like it means the government has to prove the seized property is directly derived from criminal activity. But that's not what the sentence actually says. All the government has to prove is that the law provides for its forfeiture. Actually proving seized property is derived from criminal activity isn't something the government has to do. It only has to do this if the seizure is challenged. If it isn't, the normal boilerplate assertions about agents' information and belief are usually enough to net the government some extra spending money or fine auctionables.

The real fun begins when the FBI talks about civil forfeiture -- the process in which assets are treated as suspected criminals while the suspected criminals who own the property are sidelined by the legal process.

Civil forfeiture [...] is brought against property rather than the actual wrongdoer—it’s not dependent on a criminal prosecution, it’s based on the strength of the evidence at hand, it’s available whether the owner of the property is living or dead, and it allows us to obtain the assets of fugitives who have escaped the arm of the law or subjects who reside outside our borders.

This is law enforcement's favorite brand of forfeiture, as it eliminates tons of paperwork, arraignments, courtroom testimony, Fourth Amendment "technicalities" that spring suspected criminals, and dangerously unpredictable juries.

The most laughable part of this sentence is what the FBI claims civil forfeiture is used against -- fugitives and foreigners. In "many" cases (to borrow the FBI's vague term), the people assets are taken from are not only not fugitives or foreigners, they're also left uncharged and unjailed while their belongings begin the streamlined process of becoming government assets.

The FBI freely admits it engages in another form of parallel construction to better ensure the government ends up with something in every forfeiture case.

In some instances, the FBI—in conjunction with U.S. Attorney’s Office—will run parallel criminal and civil forfeiture cases. There are several reasons for this. Parallel proceedings help us get the proceeds of a crime back to the victims more quickly. Also, if the case involves depreciating assets (like cars), we can civilly forfeit those assets faster than in the criminal proceeding, then liquidate the assets and get them back to the victim at a better return than if we had held the assets until the criminal case was completed. We also do parallel cases to ensure we can forfeit the assets civilly in case the defendant flees or dies before the forfeiture order is handed down.

Handy. If the government can't get a conviction, it can still possibly take property from someone it couldn't prove was an actual criminal. By running them in parallel, defendants are left with almost no time to fight for the return of their property after they're exonerated.

And there's another laughable statement hidden in this paragraph: the notion that asset forfeiture has anything to do with "returning" the proceeds of criminal activity to victims. The FBI says it has returned $100 million over the last two years to crime victims. Sounds impressive, but that's only when presented without context, as the FBI does here. Scott Shackford of Reason provides some much-needed fiduciary bracketing:

In just 2014 the federal government deposited $5 billion in seized assets. That was just one year. So this $100 million in restitution over two years is a drop in the bucket compared to what they've taken. Most of the money is kept for themselves or shared with local law enforcement agencies.

The government's do-gooding only looks like do-gooding when deprived of context. The FBI -- and countless local law enforcement agencies now facing pushback from legislators and constituents -- wants to have it both ways: the power of Nottingham's sheriff but the public adoration of Robin Hood. It can't have both. And it has chosen for years to give into every base urge that civil asset forfeiture's perverted incentives have created. The public tide has turned against forfeiture, but the FBI -- waist-deep in water -- thinks it can keep everything under control by waving a badge and a "we're the good guys" grin.

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

Sheriff's Office Raids Home, Seizes All The Furniture, Ultimately Returns Everything But The Couch

from the finder's-fee:-one-(1)-sofa dept

The joke about asset forfeiture is that it's actually not a joke. Advisors to law enforcement have actually said it's a great way for cops to go shopping for things they want. It's not just cash being taken, although it's primarily that. It's vehicles, too. And when that just doesn't seem to be enough, it's houses. And everything in them.

So, the "going shopping" joke is one very dark punchline. Here's another one: "take everything that isn't nailed down." Except that this actually happens. And it includes things that are nailed down. Reason's C.J. Ciaramella has more details.

In 2012, Rehfeldt says the Hind County Sheriff's Office raided his client's apartment on suspicion her boyfriend was a drug dealer. Anything purchased with drug proceeds is fair game to be seized by police under civil asset forfeiture laws, and they determined the boyfriend had furnished the apartment, so off went her TV, her table and chairs, her couch, her lamps, and even the pictures on the wall.

"Her case is the first in my 38 years of practicing law where they took the furniture," Rehfeldt says.

What's the proper response? Shock that this sort of thing actually happens? Or relief that law enforcement doesn't clean out a person's home every time they have a hunch something may have been purchased with the proceeds of criminal activity?

In this case, most of what was taken by the sheriff's office was eventually returned. Rehfeldt's clients is one of the lucky ones, able to navigate a legal pathway that's a greased downhill slope for law enforcement, but an expensive, uphill battle for those whose property has been seized.

His client got everything back. Well, not everything.

"It is, therefore, ordered and adjudged that one Visio television, one dining room table and chairs, pictures and lamps are to be returned to the plaintiff upon execution of this Order by this Court," the Feb. 10, 2015 order in the Hinds County Court reads. "Additionally, one white couch is hereby forfeited to the Hinds County Sheriff's Office."

For reasons unexplained, the sheriff's office was allowed to keep the couch. Perhaps deputies had grown attached to it after it was placed in the breakroom. Or maybe it was "disposed" prior to the forfeiture being finalized and there was simply no way to retrieve it. Or maybe it was just the state's skim -- the percentage taken off the top of every forfeiture, whether or not the seizure was legally-justified.

The skim is part of the problem. Mississippi's legislature is looking at overhauling the state's forfeiture laws and a Senate committee letter obtained by Reason confirms that law enforcement's tendency to charge fees or withhold some percentage of the property seized gives the program the appearance of impropriety.

Upon a cursory analysis of these orders, PEER staff notes that Agreed Orders tend to have the most potential for indicating possible abuse. This is because most Agreed Orders are entered into upon a settlement agreement in which the arresting authority receives some or all of the forfeited property as a condition subsequent to some sort of agreement made between the arresting party and the defendant.

As the arresting party often seizes a large amount of property or cash and many of these Agreed Orders stipulate that some or most of the said property or cash will be returned while some will be forfeited, a reasonable person might assume that the arresting party is using its authority to gain assets from an arrest by settling with the defendant.

If this is how it's routinely handled, it encourages law enforcement to take everything it can get its hands on, if for no other reason than it increase its chances of being able to retain some of it if the forfeiture is challenged. This settlement system perverts incentives, changing it from serving the general public through the targeted crippling of criminal organizations (however loosely-defined) to serving law enforcement agencies by allowing them to directly profit from the taking of citizens' property.

Filed Under: asset forfeiture, civil asset forfeiture, furniture, hinds county, hinds county sheriff's department, law enforcement, returns

Trump's Pick For Attorney General A Big Fan Of Civil Asset Forfeiture

from the status-quo-maintenance dept

Efforts to rein in civil forfeiture have been moving forward around the country. Several states have passed laws that remove some of the perverse incentives that have allowed law enforcement agencies to seize cash, cars, homes, and whatever else might be laying around without criminal convictions. Very few efforts have gone as far as to make convictions a requirement in every case, but most have at least closed the federal loophole that allowed agencies to bypass more restrictive state laws to take control of citizens' assets.

The federal government's use of asset forfeiture still remains untouched. The equitable sharing program that helped local law enforcement agencies skirt state regulations closed briefly due to budget cutbacks, but was revived once the tax dollars started flowing again.

While some legislators have mounted efforts to scale back federal civil asset forfeiture, nothing has made its way to the president's desk. There's a new president on the way and his choice for attorney general isn't going to help those efforts along. Alabama Senator Jeff Sessions is a longtime fan of asset forfeiture and still believes -- despite years of evidence to the contrary -- that it's an effective Drug War weapon, rather than law enforcement agencies going shopping for things they want.

At a 2015 Senate Judiciary Hearing, Sessions had this to say about federal adoption of local forfeitures, as well as forfeiture in general.

[Sessions] said he doesn’t “think it’s wrong to—for federal government to adopt state cases” and added that “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.”

Mr. Sessions said he was “very unhappy” with criticism of a program that mostly took money from people who have “done nothing in their lives but sell dope."

It's difficult to square Sessions' "done nothing but sell dope" view on forfeiture with the more common reality: assets seized from people who've "done nothing in their lives" but never "sell dope."

For Christos and Markela Sourovelis, for whom the worst thing was losing their home, “Room 101” was Courtroom 478 in City Hall. This “courtroom’s” name is Orwellian: There was neither judge nor jury in it. There the city government enriched itself — more than $64 million in a recent 11-year span — by disregarding due process requirements in order to seize and sell the property of people who have not been accused, never mind convicted, of a crime.

The Sourovelises’ son, who lived at home, was arrested for selling a small amount of drugs away from home. Soon there was a knock on their door by police who said, “We’re here to take your house” and “You’re going to be living on the street” and “We do this every day.” The Sourovelises’ doors were locked with screws, and their utilities were cut off. They had paid off the mortgage on their $350,000 home, making it a tempting target for policing for profit.

Sessions doesn't care for this program being criticized, despite no law enforcement agency being able to offer up evidence backing his claim that "95%" of forfeitures are linked to drug dealing. Why? Because these agencies don't have that proof. They're not required to. Civil asset forfeiture circumvents the adversarial part of the judicial process almost entirely.

The few cases we do hear about are those that involve amounts worth fighting for. The process is expensive, labyrinthine, and stacked against the former owners of the seized assets. All most agencies have to do is make a few hunch-backed assertions about drug dealers and their tendency to use cash for transactions and their ability to purchase assets with obtained cash. Because convictions aren't an integral part of the process, no investigations are started and no efforts made to ensure the seized assets are the direct result of criminal activity.

Sessions as attorney general won't be able to do much about state laws that prevent law enforcement from partnering with the federal government to route around local statutes, but he will be able to stand in the way of reform efforts targeting federal civil asset forfeiture. As long as he's in charge, agencies under his control will continue to abuse an inherently-abusable process to separate people like the Sourovelis family from their property.

Filed Under: asset forfeiture, attorney general, civil asset forfeiture, doj, donald trump, due process, jeff sessions, theft

Ohio Legislature Passes Asset Forfeiture Reform Bill That Removes Lots Of Bad Incentives

from the fewer-residents-to-fear-for-their-property dept

Another state legislature has decided it's time to start scaling back civil asset forfeiture. Ohio's Senate is the latest to pass a bill targeting the worst excesses of property seizures, as Reason's CJ Ciaramella reports.

The bill passed both the Ohio senate and house by wide margins, despite opposition from law enforcement groups. If it is signed by Ohio Gov. John Kasich, Ohio will join 17 other states in recent years that has overhauled their civil asset forfeiture laws in response to media investigations and reports from civil liberties groups that revealed shocking numbers of people who've had their cash, cars, and even homes seized.

The bill [PDF] started out stronger -- forbidding the forfeiture of property without a conviction -- but has been watered down a bit [changes can be seen here] in response to law enforcement opposition. What remains is a better law than most, one that removes a lot of the perverse incentives.

Under the Ohio bill prosecutors will be required to charge citizens with certain crimes in order to forfeit their property, although in some instances prosecutors may still do so without filing any charges, according to the Columbus Dispatch. It also switches the burden of proof from the defendant to the government to show why property is connected to a crime and bars civil forfeiture for amounts under $15,000.

While it's still frustrating to see legislators automatically assume that "more $$$ = guilty $$$," this burden shift will actually deter many questionable seizures. Law enforcement agencies may obtain hundreds of thousands of dollars through forfeiture every year, but the highest percentage of that money comes from lowball seizures that are far more questionable.

Another addition that should curb abuse is the higher bar set for federal partnership. It now sits at $100,000, meaning law enforcement won't be able to use the federal escape valve to route around the new restrictions.

And, of course, those who benefited the most from asset forfeiture programs are still griping about the bill by delivering patently false statements.

Law enforcement organizations, such as the Ohio Prosecuting Attorneys Association, still oppose the bill, saying there are already plenty of due process protections for property owners built into the law.

When the state takes action against property, the property -- which can't represent itself -- is named as the defendant. While the property's owners are notified of the intended forfeiture, the system is designed from the ground up to deter challenges. In the case of smaller seizures, the cost of fighting for the return of the property can easily cost more than the seized property's value. The burden of proof is placed on those whose property was seized, and the previous lack of a "basement" for burden-shifting means agencies were comfortable making dozens of small seizures, knowing very few people would attempt to fight the forfeiture.

These are good changes. They could have been better, but the law enforcement lobby -- combined with politicians' natural fear of looking "soft" on crime -- tends to result in the compromises seen here. But it's far, far better than ignoring the issue and allowing law enforcement to continue indulging in its perverted incentives.

Filed Under: asset forfeiture, civil asset forfeiture, ohio, stealing

Iowa Taxpayers Handing Out $60K Settlement To California Gamblers Who Were Legally Robbed Of $100K By State Troopers

from the we'll-keep-taking-stuff-as-long-as-you-guys-keep-giving-til-it-hurts dept

A couple of years ago, two victims of Iowa's Snatch and Grab drug interdiction team saw $100,000 in cash disappear into the pockets of state police following a dubious traffic stop. The state ultimately returned 90% of the seized cash to the California natives, but not before calling in a tip to California law enforcement to cause additional problems for them once they returned home.

The Iowa State Police's Fishing Expedition Unit noted -- during its attempt to retain "ownership" of money it couldn't prove was connected to anything illegal -- that the two Californian poker players set off all sorts of "suspicious behavior" alarms when stopped, including indicators that contradicted other indicators. From the 2014 lawsuit:

Defendant Desert Snow and Joe David’s training taught Trooper Simmons that completely innocent behaviors were indicators of criminal activity, including:

Dark window tinting
Air fresheners or their smell
Trash littering a vehicle
An inconsistent or unlikely travel story
A vehicle on a long trip that is clean or lacks baggage
A profusion of energy drinks
A driver who is too talkative, or too quiet
Signs of nervousness, such as sweating, swallowing or redness of face
Designer apparel or other clothing that seems inappropriate
Multiple cellphones

More than three years later, Iowan taxpayers are going to have to reach into their own pockets to finish paying the interdiction unit's tab.

Iowa announced Monday that it has disbanded its state forfeiture team and — in a separate move — also agreed to pay $60,000 to settle a lawsuit brought by two California gamblers whose bankroll was seized during a warrantless search in 2013 by two Iowa State Patrol troopers.

The other good news is the disbanding of the "state forfeiture team," as the Des Moines Register honestly calls it. The State Police preferred to call its highway banditry something less patently obvious: "Criminal Interdiction Team" and, later, "Special Operations Unit." Honestly, it could have just been called the Nottingham Sheriff's Department Revenue Diversion Unit. Data compiled by the Quad-City Times shows the unit did most of its "work" within five miles of the state border.

The busiest single location for traffic stops in Iowa was near mile marker 5 on I-80 not far from the Nebraska border. The specially trained troopers issued 785 tickets and warnings there as part of the 4,027 citations and warnings issued in Pottawattamie County.

The easiest money often comes from people just passing through. Travel to and from nearly any state can be viewed as "suspicious" by law enforcement officers -- as can nearly any and all driver behavior. Here's a fantastic bit of suspicioning from another member of the state's Legalized Theft Team, as called out by the judge tossing out evidence obtained during a warrantless search.

As for the trooper's assertion that Hanrahan was still nervous even after he was told he would only receive a warning, nervousness alone, under these circumstances, did not generate reasonable suspicion of criminal activity to provide grounds for a warrantless search. See United States v. Guerrero, 374 F.3d 584, 590 (8th Cir.2004)("[I]t cannot be deemed unusual for a person to exhibit signs of nervousness when confronted by an officer."); Beck, 140 F.3d at 1129(same). The trooper's reliance on this factor is particularly questionable to the extent it was based on Hanrahan's apology for speeding and his statement that "he would absolutely slow down." In the trooper's view, Hanrahan's response was suspicious because "most people that aren't doing something wrong, they are almost offended that you stopped them for a minor violation instead of someone else." In our view, nothing in Hanrahan's courteous and respectful answer could be construed as suspect.

The "interdictions" will not halt completely, however. They'll just be more distributed.

Jeff Thompson, also of Iowa Attorney General Tom Miller’s office, told the board Monday that the Iowa Department of Public Safety had disbanded the interdiction team. He said state and local law enforcement agencies may continue to pursue forfeitures but not under the concerted effort of the longtime interdiction team. He said the decision to disband was not based on Monday’s settlement.

“It (the interdiction team) essentially led to a number of stops and seizures,” Thompson said. “The whole process, that whole concept, has been somewhat under attack.”

The interdiction team was dismantled because of increased personnel demands, including increased focus to reduce Iowa traffic deaths, said Sgt. Nathan Ludwig of the Iowa State Patrol. There are no plans to resurrect the team. The troopers assigned to the interdiction unit have been reassigned to general patrol duties, he said.

At least the attorney general's office recognizes civil asset forfeiture is, at the very least, controversial. The reassignment of officers should break up the campouts on the Nebraska border, but there will still be ample opportunities to turn routine traffic stops into Diving for Dollars. At the very least, traffic patrol officers might be a bit more focused on preventing deaths than preventing any seizable cash from escaping the state.

Filed Under: civil asset forfeiture, iowa, iowa state police, police

US Government Gives $11,000 Back To College Student Three Years After The DEA Took It From Him

from the ABORT,-FAIL dept

Another high-profile asset forfeiture battle has resulted in the government relinquishing its claim on seized cash and returning it to its owner.

In February 2014, DEA agents took $11,000 from Charles Clarke at the Cincinnati/Northern Kentucky International Airport. The DEA claimed Clarke's luggage "smelled" like marijuana. It may have been right (Clarke was a recreational marijuana smoker), but it didn't even bother to get a second opinion from a drug dog. Nor did it find any drugs or paraphernalia when it searched Clarke and his baggage.

It did, however, declare the $11,000 in college funds Clarke had saved over five years to be drug money. So, it took the cash from him and sent him on his way.

Normally, the burden of proof falls on the person whose property has been taken. That's how civil asset forfeiture works. The government files a claim against the seized property, cutting the original owner of the property out of the loop as much as possible. Fortunately, the judge presiding over the forfeiture dispute shifted the burden back on law enforcement after finding Clarke to be a credible complainant.

"Frankly, the fella sounds like he's telling the truth," U.S. District Court Judge William O. Bertelsman said in a hearing over how much information the U.S. government should be required to turn over to Clarke's lawyers. "He's not changed his story once in all the depositions and testimony that he's given even under the threat of perjury."

Bertelsman also ordered the government to show proof that the seized money was the result of criminal activity. This was obviously going to be a problem for the government, considering all it had to work with was some luggage that carried a hint of marijuana odor. That, and Clarke's cash, which it was in no hurry to give up, especially since it had to split the take thirteen ways.

While no further details have been released, it's probably safe to assume the government never came up with the proof Bertelsman was looking for. The Institute for Justice -- which represented Clarke in this case -- is reporting that the government is returning the seized cash to the college student.

“The United States government has agreed to give Charles Clarke back every penny of the $11,000 it seized from him at the Cincinnati/Northern Kentucky International Airport in February 2014, plus interest. Charles is very pleased that he will get his life savings back and that the whole ordeal is now behind him.”

All it would take to combat many questionable seizures would be a shift in the burden of proof. The process makes it almost impossible for those whose property has been seized to mount a successful attempt to reclaim it. The filing of cases as "Gov't v. Property" allows the seizing agency to run unopposed (as it were), since the seized property can't speak for itself and the property owner is tied up in bureaucratic paperwork with strict time limits that is wholly reliant on the seizing agency properly notifying seizure victims of the whereabouts of their cash, etc.

If the government can't come up with criminal charges, it very likely cannot come up with proof the money is tied to illegal activity. But too few courts are willing to shift the burden of proof, leaving the government to indulge in its perverted incentives.

Filed Under: civil asset forfeiture, dea

California Passes Asset Forfeiture Reform Bill That Closes Federal Loophole, Adds Conviction Requirement

from the another-win-after-years-of-losses dept

After years of civil asset forfeiture abuse, legislators are finally fighting back. Reform bills have been offered up all over the country. Unfortunately, very few of them have made it to state governors' desks intact. The DOJ itself has played an integral part in thwarting true forfeiture reform, but legislators are also battling powerful police unions and a law enforcement lobby that needs to do little more than say the words "drug dealer" to convince fence-straddlers to come down on their side.

New Mexico's legislature passed one of the most stringent forfeiture reform bills in the nation, only to see it ignored by local police departments who viewed it as applicable only to state law enforcement agencies. We'll see if the same thing happens in California, where another significant reform bill has just become law. Nick Wing of the Huffington Post reports:

California Gov. Jerry Brown (D) on Thursday signed a bill into law scaling back a controversial practice that allows police in the state to permanently seize people’s cash and property without obtaining a conviction or even charging someone with a crime.

Not only does the law contain a conviction requirement -- something that should greatly reduce the amount of abuse -- but it closes a loophole law enforcement agencies love using to route around state-level restrictions.

Beginning Jan. 1, 2017, police departments in California will be largely prohibited from transferring seized property to federal agencies in order to sidestep state conviction requirements. The legislation forbids the transfer of property, like vehicles and homes, and specifically raises the threshold on cash seizures, requiring the government to obtain a conviction before permanently confiscating any amount under $40,000. (The previous cap was $25,000.) For larger cash seizures, authorities must provide “clear and convincing” evidence of a connection to criminal activity before taking the money for good.

These restrictions should create additional barriers against misuse. High-dollar seizures are the exception, not the rule. Law enforcement agencies don't rake in cash from a few large busts a year. The greatest portion of this "income" derives from dozens or hundreds of smaller seizures. The lower dollar amounts ensure agencies will hold onto more money more often. The cost of challenging a seizure is often more than the amount seized -- a fact many law enforcement officers are all too aware of.

Survey results from the Drug Police Alliance show civil asset forfeiture is fairly widespread, with around 10 percent of residents in a number of California counties reporting that they know someone who’s had property confiscated by police without being convicted of a crime. And forfeiture trends in California don’t appear to have changed much since 1992, when 94 percent of state forfeitures involved seizures of $5,000 or less. Adjusted to 1992 levels, the average value of a forfeiture in California in 2013 was just $5,145.

This law puts some due process back into the forfeiture system, preventing agencies from running a rigged game which pits the government against the property seized and doing everything it can to keep the rightful owner from raising objections.

Of course, law enforcement officials and representatives are already complaining that the bill will turn California into Mexico.

There’s also a broader belief that the new law will encourage the criminal element to do business in California.

“The fact is that when you’re dealing with transnational criminal enterprises, one of the crippling things that you can do is seize their assets out from under them,” said John Lovell, a lobbyist for the California Narcotic Officers’ Association. “And that can be, in many cases, more efficacious than jailing a few members of that cartel.”

Except that years of drug warring and asset forfeiture haven't done anything to reduce the flow of drugs into the country. This fact is conveniently overlooked every time law enforcement agencies try to defend taking a few thousand dollars from a motorist passing through the state. The agencies that benefit from forfeiture have almost no interest in securing convictions -- a much longer, more expensive process that involves making more effort than claiming to smell marijuana before helping themselves to any cash they discover.

Agencies are also complaining about expected budget shortfalls, and without any seeming awareness that this is a mess of their own making. Effective budgets don't allow for highly-speculative projections. Agencies have no way of knowing from year-to-year how much they can truly expect to obtain through asset forfeiture. But they pencil in amounts anyway, turning this amount into a goal to chase, rather than a possible surplus that should only be counted when -- and if -- it actually arrives.

Filed Under: asset forfeiture, california, civil asset forfeiture, conviction

Before Forfeiture Is Finalized, Sheriff Racks Up 54k Miles On Seized Vehicle, Sells It To Private Buyer

from the road-(drug)-warriors dept

Drive it like you stole seized it.

Documents provided by Outside Legal Counsel show the department seized the Ostipow’s 1965 Chevy Nova SS on April 24, 2008, when the vehicle’s mileage was 73,865. [Sheriff William L.] Federspiel, who signed the vehicle title transfer form, sold the partially restored muscle car over a year later on June 4, 2009, for $1,500.

The vehicle’s title certificate filled out by Federspiel around the time it was sold says the mileage was 130,000 — 54,000 miles more than when the department seized the car.

The backstory to this seizure and extended joyride starts at the plaintiff's farm. In 2008, the sheriff's office obtained a warrant to search a second house on the Ostipow's property -- one in which their son lived. In the house, deputies found marijuana plants and seeds. The Ostipow's steadfastly maintain they knew nothing about their son's illegal activities. Presumably, they allowed him to live his own life in a house located some distance away from theirs. [Photo courtesy of Outside Legal Counsel]

Ostensibly there for drugs, deputies soon broadened their horizons.

Instead of only seizing the illegal plants and seeds, deputies seized essentially everything from the farmhouse, including, oddly, dozens of animal mounts being kept long-term at the farmhouse by Gerald because Royetta, his wife, simply didn't like these mounted animals in the main house.

But that is not all the deputies seized. The deputies also went out to outbuildings of the farmhouse and seized all the equipment, deer blinds, hundreds of tools, and many other items which lacked any realistic connection to the pot plants and seeds of Steven's grow. They even seized the '65 Nova and the car trailer it was on.

Not satisfied with cleaning out the farmhouse the Ostipow's son resided in (as well as every building surrounding it), the deputies returned with another warrant and cleaned out the Ostipow's house -- one located a half-mile away from the supposed grow operation. They found no illegal evidence, but that didn't stop them from taking plenty of their property, including the cash in Gerald Ostipow's wallet.

Then they just kept coming.

In the weeks that followed, deputies from the Saginaw County Sheriff's Office would arrive, off duty, in their personal vehicles and would continue to take more items long after the completion of the execution of the search warrants. No inventory tabulation exists for these items taken and there appears to be no records of these "self-help" items being officially sold.

The proceedings -- which have dragged on for eight years now -- never resulted in criminal charges against the Ostipows. After a trip up to the state Supreme Court, it was finally determined that Gerald Ostipow "should have been aware" of the grow operation taking place on his property. But it was also determined that Royetta's (Gerald's wife) interest in the belongings taken was free and clear. The Sheriff's office was ordered to return most the property it seized.

The problem is that the Sheriff's department no longer had the property it seized, including the vehicle it racked up 54,000 miles on.

However, the injury inflicted upon the Ostipows was not complete. After the final judgment was entered, it was discovered that all of the Ostipow's property had been sold by Sheriff Federspiel (he himself having signed the vehicle title transfer document for the Nova) and members of his department before there was a final determination about forfeitability of items seized and held.

The department's actions are indicative of an agency that seldom has trouble retaining anything it designates as "guilty" property. So secure was the sheriff's office in its belief that it would ultimately prevail -- despite never bringing criminal charges against the couple whose assets it seized -- that it moved ahead with converting the property to cash without having any legal right to do so.

The Ostipows are now suing [PDF] the sheriff and his deputies in federal court for blithely blowing past even the minimal protections granted to victims of asset forfeiture. In addition to $1 million+ in damages, the Ostipows are seeking declarations that the asset forfeiture processes deployed by the sheriff's department are Constitutional violations and the compelled released of documents requested by the couple in an earlier FOIA request.

Hopefully, Sheriff Federspiel will learn from this experience. Then again, he's already converted a seized Mustang into a department/personal vehicle and has gone on record with statements that portray his anti-drug efforts as shopping trips for his department.

Federspiel hopes his department will claim more vehicles through drug forfeiture or drunk driving laws to equip his six-person cadre of captains, lieutenants and sergeants by the end of his first term. “I don’t want to buy another vehicle for my command staff,” he says.

He’s targeted a 2008 black Cadillac Escalade which, if acquired, would become the mobile, anti-drug dealing billboard for Undersheriff Robert X. Karl.

Given that this is the voice of leadership in the department, it's hardly surprising deputies feel search warrants entitle them to grab as much as they can from citizens they either can't or won't bring charges against.

Filed Under: asset forfeiture, asset seizure, civil asset forfeiture, saginaw county, william federspiel

Albuquerque Police Seize Vehicle From Owner Whose Son Drove It While Drunk; Want $4,000 To Give It Back

from the not-a-deterrent,-just-a-vindictive-money-grab dept

Last spring, New Mexico's governor signed a bill into law that would prevent law enforcement from seizing people's assets without securing a criminal conviction. This was likely prompted by the New York Times' publication of footage from Las Cruces asset forfeiture seminar in which the speaker basically said asset forfeiture is used by law enforcement to "shop" for things they want.

Several months later, the city of Albuquerque was sued by state legislators because its police refused to stop seizing assets -- mainly vehicles -- without obtaining convictions. The city claimed the new law only applied to state police, and anyway, it was only performing a valuable community service by taking cars away from members of the community.

“Our ordinance is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk,” city attorney Jessica Hernandez said in a statement to BuzzFeed News. “The ordinance provides defenses to forfeiture to protect innocent owners and has been upheld by the courts.”

lol. "Defenses."

Here's what really happens when the Albuquerque police blow off state law and perform "nuisance abatement."

After her son was arrested in April for drunk driving while at the wheel of her borrowed Nissan Verso, Arlene Harjo, 56, found herself in court being told that she had to transfer ownership of the car to the city, or else settle the case for $4,000 to get it back.

Those are the "defenses." Sign your car over or pay a fine large enough to discourage most people from recovering their vehicles. Note that the vehicle's owner wasn't suspected of any criminal activity. And there's nothing in The Guardian's story that suggests her son had even been convicted or pled guilty before the city demanded she relinquish ownership of her car.

For most people, $4,000 is an insurmountable obstacle. What makes this even worse is Arlene Harjo is still on the hook for the loan covering the vehicle she can't use.

Harjo has found herself stuck in a bureaucratic labyrinth in which she is making loan payments on a car as it sits in a government impound. On top of that, if she signs over ownership to the city, for resale, she will still have to keep making loan payments for a car she no longer possesses.

On top of that, even if Harjo comes up with $4,000, she still won't be able to use the car. C.J. Ciaramella of Reason (who broke the story) has more details on the city's vindictively-slanted legal playing field.

In Harjo's case, the city offered to give her car back in exchange for $4,000 and having it booted for 18 months.

And here's the "defenses to forfeiture" the city claims makes the process equitable.

At her hearing, Harjo was supposed to have a neutral arbiter, but the Chief Hearing Officer in Albuquerque is Stanley Harada, the same person who crafted the city's asset forfeiture program back when he was a city attorney.

Harada lectured Harjo, arguing she shouldn't have trusted her son, according to audio of the hearing. Harjo's son had several drunk driving offenses in the past, but the last one occurred in 2009.

"By providing him with a vehicle you're taking a big, big risk," Harada said. "This law is here to try and prevent people from getting killed and injured."

It seems like the best way to keep people from being killed and injured is to take drunk drivers off the street, rather than a third party's vehicle -- one that hasn't been known to kill or injure anyone when driven by its owner.

Why is this system -- which may still be found to be illegal under state law -- so antagonistic to people in Harjo's situation? Because it is designed from the ground up to feed money directly to the same law enforcement entities that perform the seizures.

According to last year's lawsuit against the city, Albuquerque forecasts how many vehicles it will not only seize, but sell at auction. The city's 2016 budget estimates it will have 1,200 vehicle seizure hearings, release 350 vehicles under agreements with the property owners, immobilize 600 vehicles, and to sell 625 vehicles at auction.

In fact, the Albuquerque city council approved a $2.5 million bond to build a bigger parking lot for cars seized under the DWI program. The revenue to pay for the bond will come from the DWI program.

As Ciaramella points out, the city of Albuquerque currently seizes around 1,000 cars a year and city law enforcement directly benefits from the $8.3 million the program has brought in since 2010. The incentives are completely broken. The city isn't interested in scaling back its seizures because it has already decided how many cars it needs to take possession of to hit its budget numbers for this year. Without a ruling declaring these seizures illegal under state law, Albuquerque police (when not shooting a bunch of the city's residents) will be viewing every minor traffic stop as an opportunity to take another "criminal" vehicle off the streets.

Filed Under: albuquerque, asset seizure, civil asset forfeiture, new mexico

DEA Accessing Millions Of Travelers' Records To Find Cash To Seize

from the trolling-for-dollars dept

The DEA -- along with several other law enforcement agencies -- has shown, over the years, that civil asset forfeiture is the tail wagging the dog. It may have been put in place to separate criminals from their cash, but is now used mainly to pad agency budgets and increase discretionary spending.

This attitude is summed up by the former DEA supervisor quoted in Brad Heath's (USA Today) investigation into the agency's forfeiture activities.

“They count on this as part of the budget,” said Louis Weiss, a former supervisor of the DEA group assigned to Hartsfield-Jackson Atlanta International Airport. “Basically, you’ve got to feed the monster.”

The monster is insatiable. The DEA loves taking cash from travelers so much it has hired TSA screeners as informants, asking them to look for cash when scanning luggage. It routinely stops and questions rail passengers in hopes of stumbling across money it can take from them.

But it goes further than just hassling random travelers and paying government employees to be government informants. As the USA Today's article points out, the DEA is datamining traveler info to streamline its forfeiture efforts.

DEA agents have profiled passengers on Amtrak trains and nearly every major U.S. airline, drawing on reports from a network of travel-industry informants that extends from ticket counters to back offices, a USA TODAY investigation has found. Agents assigned to airports and train stations singled out passengers for questioning or searches for reasons as seemingly benign as traveling one-way to California or having paid for a ticket in cash.

The DEA's cash-seizing efforts add another layer of surveillance to the traveling experience. It's not just multiple agencies looking for terrorists. It's also at least one agency looking for nothing more than cash. And it works. Heath notes that the DEA's surveillance apparatus has resulted in at least $209 million seized from over 5,000 passengers over the last decade.

This is wonderful news if you believe the DEA's job is to take cash off the streets. Not so much if you believe it should be taking criminals off the street.

In most cases, records show the agents gave the suspected couriers a receipt for the cash — sometimes totaling $50,000 or more, stuffed into suitcases or socks — and sent them on their way without ever charging them with a crime.

Case in point: the DEA seized $25,000 from a traveler after profiling her as a suspected drug courier, based on her itinerary and a past conviction for smuggling. But even though the DEA suspected her of being part of a trafficking operation, it seemed entirely uninterested in doing anything more than taking the cash.

Agents seized the money, and let Tillerson go. Her lawyer, Cyril Hall, said she was never arrested, or even questioned about whether she could give agents information about traffickers.

A year later, Tillerson produced paperwork showing the cash the DEA seized was lawfully obtained. The government agreed to give it back -- minus $4,000 prosecutors decided to keep just because.

The DEA, of course, claims that seizing cash (without pursuing indictments) is an essential part of its efforts to cripple drug trafficking operations. But after several decades of interdiction and forfeitures, most drug cartels seem to be every bit as financially healthy as the DEA is.

The perverse incentives of asset forfeiture don't just corrupt the DEA. They infect everyone involved in the process.

Five current and former agents said the DEA has cultivated a wide network of such informants, who are taught to be on the lookout for suspicious itineraries and behavior. Some are paid a percentage if their tips lead to a significant seizure.

[...]

[A]mtrak’s inspector general revealed that agents had paid a secretary $854,460 over nearly two decades in exchange for passenger information. A later investigation by the Justice Department’s inspector general found that the secretary initially looked up reservations only at agents’ request, but quickly “began making queries on his own initiative, looking for indicators that a person might be planning to transport illegal drugs or money on a train,” according to a report obtained under the Freedom of Information Act.

Airlines refuse to work directly with the DEA, but that hasn't stopped the agency from finding airline employees willing to peruse itineraries -- or pass them on to the DEA -- for a cut of the cash. The DEA can't use info from terrorist databases, so it has created an ad hoc network of informants to create a cash-focused surveillance network. Cash is king. Everything else about the drug war -- indictments, convictions, etc. -- is just a sideline.

“We want the cash. Good agents chase cash,” said George Hood, who supervised a drug task force assigned to O’Hare International Airport in Chicago before he retired in 2007. “It was just easier to get the asset, and that’s where you make a dent in the criminal organization.”

Welcome to the Drug War, where whatever's "easiest" is the government's focus.

Filed Under: asset forfeiture, cash, civil asset forfeiture, dea