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

Detective Who Was Recorded Assaulting An Unarmed, Handcuffed Suspect Acquitted Of All Charges

from the who-are-you-going-to-believe?-those-things-you-call-eyes? dept

Both a cop and his prime homicide suspect have walked away free men. But it's the cop who's gathered most of the attention. Donald Love was picked up by Milwaukee police on August 14, 2013, after his infant son died in a local hospital of traumatic brain injuries. Love wasn't just a "person of interest." He was alone in the house with the infant at the time the injury occurred.

Love was interrogated by detective Rodolfo Gomez Jr. This questioning was recorded. The highlight reel, as it were, doesn't show much interrogation. It shows Gomez attacking the restrained suspect on two separate occasions. Love was punched, kicked and jabbed in the eye with Gomez's thumb. The latter -- and more excruciating "interaction" (caution: the video hosted here contains some very unnerving screaming) -- occurred during Gomez's "follow-up questioning," and appears to have been provoked by Love's justifiably angry yelling.

A jury acquitted Love of all charges more than year later. Another jury also acquitted Gomez of all charges, despite watching him assault a handcuffed man. (via The Honest Courtesan)

How do you defend someone against charges related to a videotaped beating? Well, you do everything you can to cast the person handing out the beating as the real victim. His defense lawyers helped, but they had to fight an uphill battle against both damning video footage and statements made by Gomez himself, most of which gave the indication that he had no idea how to handle a potentially dangerous individual.

First, Gomez admitted he said something he knew would provoke an angry response. Then he claimed his short-term memory went all haywire in the heat of the moment.

Even after Gomez punched Love hard in the face, he still refused orders to sit and stop resisting, Gomez told the jury, causing the veteran detective to fear for his life.

Love finally settled down when the lieutenant responded to yelling in the interrogation room and helped Gomez gain control of Love. Both detectives then left the room, but Gomez continued to monitor Love from just outside the doorway.

It was at that point, Gomez said, that he realized he had handcuffed Love earlier.

"I had forgotten I had handcuffed Mr. Love," Gomez said.

"Forgotten." And twice at that. Gomez got a very good look at the "forgotten" handcuffs during the first beatdown, having twisted Love's free arm up against his body and bent him over the interrogation room desk. But he entered the room moments later and acted as though Love's left hand was unrestrained.

On top of that, he stated that he "provoked" an angry reaction -- something he probably wouldn't have done if he thought Love was completely unrestrained. If he actually thought Love wasn't cuffed to the wall -- and went ahead with his plan to aggravate his detainee -- then Gomez was either acting recklessly or just looking for an excuse to start swinging.

Gomez's memory continued to leak.

Gomez said the door behind was closed and locked, which made retreat difficult. But even if the door had been open, he said, he would not have tried to leave the room.

"I'd be giving my back to a killer," Gomez said.

A lieutenant testified that when responding to the room after hearing yelling, the door was open.

And with all of that (and the detective's past misconduct), the jury still found Gomez credible enough to acquit. The key to this unlikely turn of events? The skillful manipulation of time. A handful of guys in black suits walking down through a parking lot is almost completely uninteresting. But adjust the speed a bit and suddenly you have something much more dramatic. The same sort of thing happens in real life. A video which apparently shows a detective beating an unarmed, restrained man becomes a horrific incident in which a detective bravely survives a potential beating at the hands of an unarmed, restrained man.

A juror from the trial said a defense expert's frame-by-frame examination of the incident's key moments put things in a different light and convinced jurors that Gomez reasonably believed he was in danger and used only the force necessary to establish control over Deron Love, a suspect in the death of his infant son.

"We were able to convince the last juror, reluctantly, that still frame by still frame Gomez's last three closed fist windups became open palm motions to control Love's arms, and his final leg strike misses the mark."

Gardner said the expert's explanation, while moving single frames from the video back and forth in a slide show, helped convince jurors that Love was resisting Gomez's commands to sit down or relax his body, even if Love didn't actively fight back.

It also helps to have a jury pool sufficiently awed by the dangers of police work that they can swallow that last sentence without immediately vomiting in disbelief. And also willing to grant positive points for blows that didn't quite connect. Apparently, you can "resist" without "actively fighting back," and you'll know that you're "resisting" when the police officer begins raining blows on your handcuffed body.

"Turning your back on a killer" or no, Gomez had other options. Love was restrained. He could have left the room. He could have called for help. He could have simply walked as far back as needed to still "communicate" with Love without being "resisted" at the same time. The excuse that he "forgot" he had handcuffed Love might work once, but it doesn't explain his actions the second time, after he could plainly see the handcuff attached to Love's wrist.

Gomez, for the time being, is no longer a Milwaukee PD employee. This "problem" may be swiftly remedied now that he's been acquitted. Love has also been cleared of all charges, but he's headed right back into the courtroom with a newly-filed civil rights suit against Gomez. Just as this won't be Love's first tango with Gomez, it also won't be Gomez's first appearance under the heading "DEFENDANT" in a civil rights suit. A 2008 lawsuit stemming from a no-knock warrant obtained by Det. Gomez ended up this way.

Gomez, now a homicide detective, sought qualified immunity. The district judge denied the request, a decision that was upheld Wednesday by the 7th U.S. Circuit Court of Appeals. Gomez was recently the subject of internal investigation after his arrest on a domestic violence claim. No criminal charges were issued.

In its 20-page opinion, the court found that "If believed, (the sister's sworn) deposition testimony would establish that Officer Gomez knowingly or with reckless disregard for the truth made false or misleading statements in the affidavit..."

In denying Gomez qualified immunity, the court noted that Gomez's affidavit implied the [suspects] kept weapons as a part of a criminal enterprise, when the sister's tip suggested nothing of the sort, that he knew the sister was on bad terms with Sharon Betker and hadn't been in the Franklin home for five years, and didn't try to nail down some information that came from her as hearsay.

"Statements that are both unreliable and uncorroborated do not support probable cause," the court found.

Former Det. Gomez, ladies and gentlemen: a cop who hits restrained men and unrestrained women, but somehow manages to land on his feet. And wrapped up in his tale of habitual abuse is the "power" of video -- an objective, unblinking eye that can be made to "take sides" when properly manipulated. A recording of a disputed event is better than hearsay and conjecture but, in reality, is often nothing more than a useful idiot. It only records. It offers images, not insight. With enough skill, any recording can be used to present both sides of the same argument. "Seeing is believing," as they say, but the use of controversial tactics, like those used in Gomez's defense, can change what is seen and alter beliefs.

Filed Under: conviction, donald love, police brutality, recording, rodolfo gomez

Virginia Lawmakers Attempting To Reform State's Asset Forfeiture Debacle By Pushing For A Conviction Requirement

from the but-more-work-is-still-needed dept

The Institute for Justice's 2010 report "Policing for Profit" listed Virginia as one of the worst five states in the nation in terms of forfeiture abuse. Pushing the state towards its Bottom Five finish was this perverted incentive: 100% of the proceeds from civil asset forfeiture were retained by the law enforcement agency performing the seizure. And, like a majority of states, Virginia also perverted the justice system, deeming the property "guilty" and transferring the burden of proof to those whose assets were seized.

Now that civil asset forfeiture has gone mainstream, receiving coverage from major press outlets, legislators are having a harder time ignoring opponents of these "legalized theft" programs. In response, Virginia's lawmakers are trying to drag the state out of its forfeiture morass.

Last week the Virginia House of Delegates overwhelmingly approved a bill that would effectively raise the burden of proof for civil forfeitures by forcing the government to return seized property unless it can obtain a criminal conviction. The bill, introduced by Del. Mark Cole (R-Spotsylvania) and Del. Scott Surovell (D-Mount Vernon), passed by a vote of 92 to 6 and is now being considered by the state Senate.

This fixes one major issue with many civil asset forfeiture programs. Virginia's laws only demanded a "preponderance of the evidence," something that sounds like a lot but in reality is far lower than establishing guilt "beyond a reasonable doubt." If the latter edges towards a theoretical 75% assurance of guilt, the percentage for asset forfeiture approaches a coin flip: 51%. Now, there needs to be a conviction before the agency can keep the seized property.

But there are also problems left unaddressed by this proposal.

That conviction does not have to involve the owner, however. Someone who uses an asset (a car or a home, say) in connection with a crime could be convicted, whereupon the asset would be forfeited, even if it belonged to someone else. Once a "substantial connection" between an asset and a crime is established, Virginia puts the burden on innocent owners to prove their innocence, and this bill does not change that.

The law also doesn't change the allocation of seized funds. 100% is still awarded to the agency performing the seizure with 10% of that allocated for "promoting law enforcement activities." The law also leaves the DOJ loophole open, allowing agencies to route seizures through the feds in order to dodge restrictions placed on them by local laws.

The introduction of a criminal conviction requirement should be the minimum standard any agency with these powers should have to meet. Without it, you get the sort of abuse perpetrated by Virginia's law enforcement, which has seized nearly $3 million/year in vehicles for the last 18 years and approximately $5 million in cash/year over the last decade. Contrary to the oft-stated defense that these programs are necessary to cripple powerful drug lords and multimillion dollar fraudsters, more than half the cash seized from 2001-2006 fell in the $614-1,288 range and the average worth of vehicles seized has hovered at about $6,000.

Law enforcement agencies won't be happy with the new requirement, as it's certain to result in a lower take. According to Institute of Justice statistics, the total amount seized by the state's agencies spiked in 2007, jumping from about $4 million a year to over $25 million a year. And there's been no sign of slowdown since.

It's not a complete fix, but it does at least attack the biggest problem inherent to these programs: the lack of a conviction requirement. Somehow, proponents of asset forfeiture feel there's still some unshattered logic remaining when they contradictorily deem certain property guilty, but somehow can't amass enough evidence to charge its former owners with anything.

Filed Under: asset forfeiture, conviction, due process, law enforcement, police, stealing, virginia

Copyright Is Becoming Guilt By Accusation

from the guilty-until-proven-otherwise dept

TorrentFreak has a good post about how copyright holders have been effective in moving copyright into a modern form of "witch trials" in which you are guilty based on accusations, and then have to go through a long, arduous and often biased-against-you process of proving your innocence. The article points out two examples of this. First, the Kafka-esque process that Jonathan McIntosh went through to keep his mashup video (one cited by the Library of Congress as a quintessential example of fair use) from being taken off YouTube. Of course, it actually was off for quite some time, because YouTube's ContentID system is also based on a "guilt by accusation" system -- after which you have to convince everyone (including, initially, your accuser) that you're really innocent.

The second is the new "six strikes" plans from US broadband players. One of our main complaints with all of the "strikes" plans is that they all are based on accusations, rather than any conviction. While there's an "appeals" process, it's quite limited and the rules have it so that the deck is completely stacked against those who appeal.

What both of these examples have in common, obviously, is that they're so-called "voluntary" solutions, put in place by companies, often due to arm twisting by the entertainment industry, combined with threats of government regulation if such "voluntary" actions don't happen. While it may seem that voluntary agreements are to be encouraged, when they create a situation like this, in which users are being declared guilty merely upon accusation, with little real recourse in many cases, something seems wrong. We run a very real risk of discouraging important services and innovations when we start taking away core concepts like "innocent until proven guilty" -- even if it's just in civil issues between private companies. It's a trend that's quite worrisome and can lead to many innocent people getting punished.

Filed Under: accusation, conviction, copyright, jonathan mcintosh, six strikes

Google Searches Used To Convict Hit-And-Run Driver

from the google-searches-in-a-court-of-law dept

In the past, we've noted various lawsuits where Google searches done by the accused were used against them in a court of law. There was the guy who searched on "neck snap break," days before his wife was murdered, and then there was the woman who searched on "how to commit murder" and other rather damning phrases like "instant poison" and "undetectable poisons," before her husband was murdered. In yet another such case, an investment banker has been convicted of a hit-and-run that killed a woman, after his Google searches soon after the accident turned up the phrase "hit and run." The guy had claimed that he believed he hit a deer, but his Google searches suggested he knew it was a person. Beyond just searching for the phrase hit and run, he also did searches on: "auto glass reporting requirements to law enforcement," "auto glass, Las Vegas," auto parts, auto theft, and the Moraga Police Department. Since the incident was in California, the thinking was he was looking to get the damage to his car repaired out of state to avoid any suspicion from the auto repair place. While the guy appealed the ruling saying that even with those searches he didn't have any actual knowledge he had hit a person, the appeals court didn't find that to be very convincing.

Filed Under: conviction, google searches, hit and run