Alabama Town Has 1,253 People, Nine Cops, And Generates $600,000 A Year From Traffic Stops

from the treating-drivers-like-ATMs dept

Small towns strapped for cash sometimes decide to use their law enforcement agencies to generate a steadily increasing revenue stream. Towns that otherwise would never have been noticed by non-residents have achieved national notoriety by unofficially rebranding as Speed Trap, USA.

Sometimes this notoriety leads to punishment by other government agencies. A small town in Oklahoma was banned from enforcing traffic laws by the state's Department of Safety after it came to light the town of 410 people was employing six police officers to haul in nearly $500,000 in fees in a single year -- 76% of the town's revenue.

Another small town is generating some national press about its abusive traffic enforcement operations. Brookside, Alabama has only 1,253 residents. But it has nine police officers, two drug dogs (including one named "Cash"), a mine-resistant SWAT vehicle obtained through the Defense Department's 1033 program, and an unquenchable thirst for traffic enforcement revenue.

In the last couple of years -- under Chief Mike Jones (who was hired in 2018 and was then the town's only sworn officer) -- Brookside's revenue has increased exponentially. Update: Following this controversy, Jones announced his resignation.

Police stops soared between 2018 and 2020. Fines and forfeitures – seizures of cars during traffic stops, among other things – doubled from 2018 to 2019. In 2020 they came to $610,000. That’s 49% of the small town’s skyrocketing revenue.

But the chief seems disappointed with this haul.

“I see a 600% increase – that’s a failure. If you had more officers and more productivity you’d have more,” Jones said. “I think it could be more.”

Nearby law enforcement officials see Brookside and its traffic enforcement as a problem. A district attorney from a neighboring county calls Brookside a "black hole" where drivers and their vehicles (which are often towed immediately following a traffic stop) disappear into the town's revenue generation machinery. A local sheriff says he's received calls from drivers claiming to have been pulled over and ticketed by Brookside officers… despite being nowhere near the town.

Here are some more troubling stats:

The town with no traffic lights collected $487 in fines and forfeitures in 2020 for every man, woman and child, though many of those fined were merely passing by on I-22.

[...]

[P]olice in 2020 patrolled 114,438 miles in the 6.3-mile town and issued more than 3,000 citations – a 692% increase from 2018.

And the police department directly benefits from this enforcement-driven revenue increase.

From 2018 to 2020, spending on police rose from $79,000 to $524,000, a 560% increase. The town’s administrative expenditures rose 40% and overall spending jumped 112%, from $553,000 in 2018 to $1.2 million in 2020.

Even if this obscene amount of traffic enforcement was the only thing worth reporting, it would still be concerning. But Chief Jones' department engages in other troubling, literally shady tactics while converting drivers to currency.

Chief Jones testified under oath that just one of the 10 Brookside vehicles is painted with police striping, but nine others bear no emblems, and seven are tinted all the way around, making it impossible to see inside. Jones testified his officers wear gray uniforms with no Brookside insignias.

Unmarked cars. Unmarked officers. All deployed in search of presumably unmarked bills. And they've been emboldened by Chief Jones' cash-oriented efforts, which has led to officers engaging in abusive behavior that goes beyond the abuse of petty (or imagined) traffic crimes to extract cash and seize vehicles.

Brookside officers have been accused in lawsuits of fabricating charges, using racist language and “making up laws” to stack counts on passersby.

The best time to drive through (or near) Brookside might be during its once-a-month court session, where officers are needed to route the considerable amount of traffic to parking areas and presumably others are tied up offering testimony.

This abuse of police power is generating legal activity. The AL.com report says the town and its PD now face no fewer than five lawsuits. Given the amount of money the department has extracted from Alabama residents, the legal war fund should be well-stocked. Unfortunately, this means those suing Brookside have already contributed to the town's defense fund, albeit months in advance of their litigation.

Filed Under: alabama, brookside, extortion, forfeiture, law enforcement, revenue, traffic stops

Judge Orders FBI To Return $57,000 Seized From A US Private Vaults' Customer Since It Apparently Can't Justify Keeping It

from the broad-speculation-isn't-probable-cause dept

The judge, who blocked the FBI from moving forward with forfeiting property from certain US Private Vaults' customers who haven't been accused of crimes, is now ordering the FBI to return money to one of the people contesting the seizures.

The FBI raided US Private Vaults in March, claiming customers, if not the owners of the business themselves, were involved in a host of crimes, including drug trafficking and money laundering. It's now August and no one has been charged. The FBI, however, has millions of dollars in currency and other property in its possession and is refusing to give any of it back.

The FBI's warrant specifically said agents would only search the content of safety deposit boxes to determine ownership. The contents were to be inventoried but the FBI's affidavit suggested the agents performing the raid would not be searching the contents for evidence of criminal acts.

That self-imposed restriction was ignored. And the FBI was able to move forward with seizures even without bringing criminal charges because civil asset forfeiture remains a thing in this country: the taking of people's property using only the unproven assertions that they may be the result of illegal activity. This vagueness didn't sit well with Judge R. Gary Klausner, who blocked the FBI from moving forward with some forfeitures early last month.

The FBI insists it is right to keep this process in motion. However, as the judge points out in his latest order [PDF], its insistence hasn't been accompanied by any plausible justifications. (h/t FourthAmendment.com)

The facts of this case raise two questions of constitutional import: first, "Why does the Government have [Joseph] Ruiz's $57,000?"; and second, "Why won't the government give it back?"

According to the government, the why is self-explanatory. A grand jury convicted the business of conspiring with customers to launder money, distribute drugs, and structure transactions to hide income from the IRS. The judge says the FBI's decision to seize the contents of boxes makes sense, given that it had to seize property containing many small boxes of property.

Though the Court makes no ruling as to the constitutionality of the Government's March 22, 2021 search and seizure, the Government's story makes practical sense. Assuming the Government was authorized to seize the nests of safety deposit boxes at USPV, then, by necessity, the Government was authorized to seize Ruiz's nest egg which was locked up in Box 7622.

That answers the first "why," and that answer largely rests on the assumption the search and seizure was proper, which the court assumes for the sake of argument, but not as a matter of law.

The second "why," however, has not been answered satisfactorily by the FBI.

The Government goes on at length as to the general difficulties in returning peoples' property to them, but the upshot of the Government's argument is that returning property to hundreds of people is a slow bureaucratic process.

As to the justification for continuing to seize the $57,000 found in Box 7622, the Government's answer falls flatter still. The Government asserts, without further explanation, that it is keeping Ruiz's $57,000 because "the cash is the subject of [] pending in rem forfeiture proceedings."

But why? The FBI notice sheds little light on the issue.

The court points out the notice only informs Ruiz his cash has been seized because of suspicion violations of US laws. But the laws referenced cover up to 35 different crimes and the government has yet to state which specific crimes it suspects Ruiz has committed. It's not enough to say things are the way they are because things are the way they are, as the FBI has done here.

Why has the Government kept the $57,000 now that Ruiz has come forward and sworn under the penalty of perjury that it is his? The Government doesn't really say. Instead, the Government states that it continues to seize Ruiz's property because "the cash is the subject of… pending in rem forfeiture proceedings." This explanation is not a justification. Merely stating that the Government has initiated forfeiture proceedings against the property does not offer any insight into how the Government's continued retention of the $57,000 complies with the dictates of the Fourth Amendment.

The result is an order for the FBI to justify this seizure or give back the money within seven days. This order follows 106 days of the FBI keeping Ruiz's cash without justification.

The FBI has chosen to try to justify the seizure. However, the assertions made in its affidavit don't offer any better explanations for the continued seizure. All the affidavit [PDF] does is declare the FBI can't say for sure how Ruiz ended up with this money. And, according to the FBI, this uncertainty should be all it needs to maintain permanent control of Ruiz's cash.

The affidavit claims agents can find no legal records pertaining to insurance/injury settlements that would add up to the $57,000 Ruiz claims came from insurance payouts. It also points out Ruiz hasn't filed a tax return since 2018, which it assumes means Ruiz has made no legitimate money since that point. Of course, this could simply mean Ruiz has made income he hasn't paid taxes on, but that's not included in the statutes listed in the government's forfeiture notice.

It also claims Ruiz is connected to unlicensed distribution of marijuana paraphernalia. But it also points out this potentially illegal business does NOT generate much cash flow, so by its own admission, the FBI is stating that the money seized could not have come from this.

On USPV Executor/Conservator paperwork, which Joseph RUIZ (“RUIZ”) left in the box, he listed his email address as holysmokescrafts@yahoo.com. Holysmokescrafts@yahoo is an on-line marijuana paraphernalia business, specializing in turning liquor bottles into marijuana smoking devices. On-line businesses do not typically generate cash, but this business suggests RUIZ may be involved in the cannabis industry in other ways. According to the California Department of Cannabis Control, RUIZ is not licensed in California to participate in the cannabis industry in any way.

The FBI also absurdly suggests that the mere existence of a bank account in Ruiz's name means he has a way to pay for living and medical expenses even without the $57,000 the FBI took from him.

Finally, the February 26, 2021 CTR by J.P. Morgan Chase, referenced above, demonstrates that RUIZ had an active bank account at J.P. Morgan Chase within weeks of the execution of the USPV seizure warrant, suggesting that he had a readily available avenue to pay for rent, groceries and other expenses.

I'm not sure if the Special Agent is aware of this, but the bank does not pay for these expenses. The bank merely holds a person's money and gives them a convenient way to pay for these using their own money, not the bank's. The FBI has Ruiz's money at the moment, not the bank. And I have no doubt that if there were any significant amount of money in that account, the FBI would be trying to seize that too.

This is going to be a tough sell in front of this judge. The FBI is saying the absence of evidence backing Ruiz's claims about the money's origin is the same thing as evidence of criminal wrongdoing. The FBI obviously doesn't know where the money came from but it wants to use a list of 35 federal crimes as probable cause for keeping it. The judge has already smacked the FBI twice for its vague justifications. Presenting a lack of evidence as culpatory evidence of criminal acts likely isn't going to fly.

Filed Under: civil asset forfeiture, fbi, forfeiture, in rem, legalized theft, safety deposit boxes, warrants
Companies: us private vaults

Trinidad And Tobago's 'You Can't Afford That' Forfeiture Law Claims Its First Victims

from the government-is-just-another-word-for-the-people-telling-you-what-you-can-afford dept

Here in the United States, asset forfeiture is pretty straightforward. In civil asset forfeiture, the government decides it wants something you have and files the paperwork to take it. In criminal asset forfeiture, the government takes your stuff pre-trial to prevent you from mounting a decent defense and finalizes the transfer of wealth post-conviction.

In both cases, the government takes stuff before anything's been proven in court. Only in criminal asset forfeiture does the government have to do much work convincing a judge it should have your property instead of you.

Legalized theft in the United States is scary, abusive, and the target of much criticism. It's a one-sided process that favors the accusers.

But at least you still get to keep the clothes you're wearing, unlike in the Netherlands. Dutch police are willing to disrobe anyone they suspect can't afford (at least not with legally-obtained funds) the clothes on their backs, the watches on their wrists, and any other accoutrements cops think a person couldn't have purchased without ill-gotten gains.

Meanwhile, the UK government allows law enforcement to secure "unexplained wealth orders," which allows them to seize anything someone can't produce receipts for. To move forward with these orders, there has to be at least some articulable suspicion the wealth may have been derived from a serious criminal act. The downside is the power has also been granted to tax collection authorities, which turns less-serious crimes like owing back taxes into "serious" crimes since it's subject to the same legalized theft program. No convictions need to be secured before the government can start taking stuff away from people. And the burden of proof rests almost entirely on the person whose property is being taken.

It appears Trinidad and Tobago has instituted the same sort of government-enabled theft program. And it actually beat the Brits to it by a couple of months. The islands' "explain your wealth" law went into effect in April of this year, but it took until December for anyone to take it out for a test drive.

The law allows law enforcement to freeze/seize assets, utilizing either restriction or forfeiture orders. The process starts with the filing of a request by law enforcement or revenue officers. All the government needs to do is tell the court it suspects the wealth is unexplained. The burden of proof is on the accused.

Where the High Court "is satisfied that there are reasonable grounds to suspect that the total wealth of the respondent exceeds the value of his wealth that was lawfully obtained, it may make a Preliminary Unexplained Wealth Order, requiring the respondent to file a declaration and appear before the High Court to answer questions relative to his assets for the High Court to decide whether to make an Unexplained Wealth Order."

After this, a notice of the making of the Order shall be served on the respondent.

Here's who the government is going after with its first "unexplained wealth order."

A St Helena couple has 28 days to explain their wealth after a High Court judge granted the police an order under new legislation.

Justice Carla Brown-Antoine granted the order on Monday after finding the police had presented enough evidence to justify it.

The order was granted ex-parte.

Under the judge’s orders, the two are each to file a declaration under sections 58(1) and 61(1)of the Civil Asset Recovery and Management and Unexplained Wealth Act within 28 days, and are to appear in court on January 7.

There are few details on who this couple is or why they're suspected of having too much stuff. But it could be anybody, really. The Attorney General of Trinidad and Tobago says the law will be used to go after "bandits who wear gold chains and drive Mercedes Benz and BMWs." Looking for gold and imported cars casts a pretty wide net. There's really no downside for the government since citizens will have to do all the evidentiary heavy lifting.

Oh, and the AG tossed out this horseshit chestnut while arguing on behalf of giving law enforcement the power to strip people of their possessions without having to prove any connection to criminal activity:

If in­no­cent cit­i­zens have noth­ing to fear or hide, the Civ­il As­set Re­cov­ery Un­ex­plained Wealth Bill should not scare them.

This was the mes­sage At­tor­ney Gen­er­al Faris Al-Rawi sent to the pop­u­la­tion in Par­lia­ment yes­ter­day, as he read out the 75-clause bill which seeks to cre­ate a civ­il as­set re­cov­ery and man­age­ment agency for the re­cov­ery of crim­i­nal prop­er­ty through re­stric­tions in deal­ing with civ­il as­sets re­stric­tion, for­fei­ture of crim­i­nal prop­er­ty and the man­age­ment of crim­i­nal prop­er­ty.

Yeah, but the government decides who's innocent. It makes the first judgment call when it requests an order. Then a judge decides whether or not those accused of having too much money can explain why they have the things they have. If the explanations aren't good enough, the government gets to keep the stuff it's seized and the question of innocence (in terms of criminal accusations) goes completely unaddressed.

The forfeiture system in the United States has plenty of perverse incentives. The one in place in Trinidad and Tobago is pretty much nothing but perverse incentives -- a simple way for the government to deprive people of their property with only the thinnest pretense of due process.

Filed Under: asset forfeiture, explain your wealth, forfeiture, legalized theft, trinidad and tobago, you can't afford that

Pennsylvania Prosecutor Built A Surveillance Network Using Forfeiture Funds And Compromised Chinese Cameras

from the who-says-the-system-doesn't-work dept

A new report from Mike Wereschagin for The Caucus details the disturbing surveillance network that's been set up around Pittsburgh, Pennsylvania using a fortuitous combination of forfeiture funds and zero oversight. The camera network utilizes cameras made by blacklisted Chinese firms and appears to have no statutes or guidelines governing its use.

The entity behind this surveillance network isn't one of the law enforcement agencies that patrol the area. Instead, this is the work of a local prosecutor who seems willing to ignore anything that resembles best practices for government surveillance.

The district attorney for Pennsylvania’s second-most-populous county has assembled a network of advanced surveillance cameras in and around Pittsburgh and has enlisted colleagues in four surrounding counties to extend its reach into their jurisdictions.

Unlike other law enforcement agencies that have deployed this technology, though, Allegheny County District Attorney Stephen Zappala Jr. outsourced its monitoring to a private company, gave other police departments access to it with no written restrictions on how they can use it and purchased Chinese-made cameras that are so vulnerable to domestic and foreign hacking that the Department of Defense considers them a national security threat.

The cameras purchased by the DA's office come from two Chinese manufacturers that have been blacklisted by the federal government because of their security flaws. Dahua Technology Co. and Hangzhou Digital Technology Co. provided the cameras used in Pittsburgh. As of August 13, federal installations are no longer allowed to purchase from these companies or utilize any already-purchased equipment. The cameras in use around Pittsburgh don't belong to any federal agency, but that doesn't eliminate the security threats posed by their ongoing use.

The DA's spokesperson, Mike Manko, says the Chinese cameras that phone home aren't a problem because, well, only random Pittsburgh residents (and their vehicles) are affected.

Hacking is “not a significant concern,” Manko wrote.

“We do have security protocols that would let us know of an intrusion, and other than being able to see the feeds of the cameras, the access to any type of information is extremely limited,” Manko wrote.

Yep. No big deal. Just foreign operatives watching US citizens via cameras these operatives sold to a US government agency. Hangzhou, the other camera provider for the DA's camera network, is a subsidiary of China's state-run China Electronics Technology Group.

The cameras already utilize license plate reader tech. The documents obtained via public records requests show these images are retained for up to six months. The DA's office claims there's been no breach of this system via its insecure cameras, but the hands-off approach the DA has taken to regulating use doesn't exactly instill confidence in the office's attention to detail.

Manko said access to the network is “limited, protected and subject to audit.” It’s unclear under what conditions, though. The Caucus requested copies of agreements governing the use of the cameras and, in response, Zappala’s office said none existed.

And, as if it wasn't enough that the DA's office doesn't appear to care that Chinese operatives might be helping themselves to camera feeds, the DA's office thinks adding facial recognition tech to the mix is the next step forward, starting with the possibly-compromised cameras already installed in local schools.

“Down the road is facial recognition,” Dick Skrinjar, a project manager in Zappala’s office, told the Downtown Clean + Safe Community Forum in Pittsburgh’s Cultural District in February.

“Any idea how many kids in public schools are on probation?” Skrinjar asked.

Two thousand, he told them.

“We have their pictures,” Skrinjar said. “We can put them in the system and restrict where these people go, and keep them out of areas they’re not supposed to be in.”

Well, I guess if you're going to emulate Chinese-style surveillance tactics, it makes sense to use Chinese cameras. The DA's spokesperson agreed that discussions with school administrators about facial recognition tech have taken place but nothing is in place at the moment. But it definitely sounds like when this tech is inevitably rolled out, it will be in schools first. According to the spokesperson, "no other use of facial recognition has been pursued."

Pittsburgh students are going to be the DA's lab rats for facial recognition tech. Keep that in mind once the statements about solving serious crimes or capturing dangerous criminals are made in defense of facial recognition rollouts by the DA or local law enforcement. Also keep in mind that asset forfeiture makes this sort of thing possible, giving the DA's office money it can spend without having to run its plans past anyone else in the local government. This makes cobbling together a problematic surveillance system like the one in use here that much easier.

Filed Under: allegheny county, asset forfeiture, chinese cameras, forfeiture, pennsylvania, pittsburgh, security, stephen zappala, surveillance
Companies: dahua technology, hangzhou digital

Government Generously Hands Back Two-Thirds Of The $626,000 It Stole From Two Men Driving Through Missouri

from the bullshit-on-top-of-bullshit dept

A case out of Missouri is highlighting yet again the stupidity and vindictiveness that defines civil asset forfeiture. In January 2017, law enforcement seized $626,000 from two men as they passed through the state on their way to California. According to the state highway patrol, the men presented contradictory stories about their origin, destination, and the plans for the money found during the traffic stop.

The complaint filed against the money made a lot of claims about the government's suspicions this was money destined for drug purchases. Supposedly evidence was recovered from seized phones suggested the two men were involved in drug trafficking, utilizing a third person's money. Despite all of this evidence, prosecutors never went after the men. They only went after the money.

Records searches of both state and federal courts did not identify any criminal charges against Li, Peng or Huang.

Even the speeding that predicated the stop (in which a drug dog "alerted" on the rental vehicle that contained no drugs) went unprosecuted.

This is where the stupid begins: alleged drug dealers allowed to continue their drug dealing by state and federal agencies more interested in the men's cash.

But it gets stupider. This was offered up in the complaint against the seized money as evidence of the men's criminal activities.

Authorities noted in the complaint he lived “9 houses” away from the site of a residence where drug transactions were occurring and a contact in his phone was recently the subject of a civil forfeiture action.

That's some mighty fine evidence. If you happen to live in the same neighborhood as a known criminal, I guess you're a criminal, too. That's just how society works, ladies and gentlemen. Move to a better neighborhood if you don't want to be lumped in with your worst neighbors.

The other part is stupid, too. According to this line of thought, if law enforcement has stolen cash and property from someone in your Contacts list, you must be a criminal. Only criminals would associate with people whose stuff has been taken by the government but have never been convicted of criminal activity.

Also apparently suspicious: traveling and not attempting to avoid mandated IRS reporting.

Peng had a number of bank transactions the complaint states were “highly unusual” including multiple deposits and wire transactions for about $100,000 each. Financial records also showed three trips between Chicago and California and one from Chicago to New York in a three-month period between November 2016 and January 2017.

You just can't win. Keep deposits too low (under $10,000) and the federal government thinks you're engaged in structuring. Keep them well above the mandatory reporting mark and you're probably a drug dealer.

It appears the agencies involved in this seizure didn't think they had enough real evidence to follow through on this forfeiture. More than two years after the $626,000 was seized, the government is returning it to its rightful owners. That's where the vindictiveness comes in. The government hasn't won a criminal or civil case against any of the people involved, but it's still going to keep a third of the cash just because.

U.S. District Attorney for Western Missouri Tim Garrison, in a settlement agreement dated April 25, wrote the government will return almost $418,000 to claimant Lu Li, of Chicago, and will keep almost $209,000.

Even when the government loses, it still wins. One-third of $626,000 remains in the hands of a government that couldn't prove anything it alleged, even in a civil case where the standard of proof is considerably lower.

In the end, we have three people short $200,000 and a government that can't competently prosecute people or their money, even when the latter can't defend itself in civil forfeiture litigation. [waves American flag with one blue stripe frantically while humming 'The Ballad of the Green Berets" for some reason]

Filed Under: asset forfeiture, cash, doj, forfeiture, legalized theft, lu li, missouri

Missouri Law Enforcement Is Dodging State Forfeiture Laws To Screw Schools And Keep Drugs Flowing Into The State

from the to-serve-and-protect-their-own-interests dept

The journalists at St. Louis Public Radio are the latest to dig into their state's asset forfeiture programs. Despite the state receiving a decent grade from the Institute of Justice for the controls it places on state-level forfeitures, the station found plenty of abuse thanks to the federal loophole, which allows law enforcement to bypass all the built-in protections legislators have enacted.

Missouri law around asset forfeiture contains some fairly strong protections. Civil asset forfeiture can only take place after a conviction or a guilty plea in a criminal case. In addition, the money is set aside for schools. The Institute for Justice, a libertarian-leaning legal advocacy group, gave Missouri a grade of B+, among the best in the country. In the federal system, however, no criminal conviction is required, and police departments can keep up to 80 percent of the money they seize.

Prosecutors like Tim Lohmar in St. Charles County make the decision whether to handle potential asset-forfeiture cases with state charges, or at the federal level. The vast majority of the time, Lohmar chooses the federal process.

This has resulted in a windfall of over $1 million for local law enforcement agencies. Thanks to federal adoption, the money train never stops, no matter what state laws require. If the forfeiture is tied to criminal charges, the money goes to local schools. Cops aren't fond of sharing, so only three of the 36 forfeiture cases processed by Lohmar last year included criminal charges for the person the cash was taken from.

The preference to grab cash, rather than drugs, has led to some completely nonsensical defenses of civil asset forfeiture.

“When you seize a thousand pounds of marijuana in the St. Louis area, you’re really not hurting the operations of a drug cartel in Mexico, because the cost to produce that thousand pounds is negligible in the grand scheme of things,” [State Rep. Justin] Hill said.

We're expected to believe cultivating and processing drugs is a zero cost effort but lost cash can never be replaced. It stands to reason that the production and sales of drugs aren't going to stop, so the seizure of a few thousand dollars from a random driver is also pretty "negligible in the grand scheme of things."

And we know cops don't actually care about stopping the drug flow. They allow the drugs to make their way into St. Louis and camp out on the roads leading away from the city to seize cash they believe resulted from the drug sales they can't be bothered to stop.

[Sgt. Carmello] Crivello, like most highway interdictors, focuses on the westbound lanes of the interstate, targeting cash, rather than drugs, that comes through Missouri in the eastbound lanes.

“The westbound, generally speaking, are the profits from the drug sales,” said Crivello in an interview, “... so stopping westbound (is) more likely to hurt drugs … (You) hurt the cartels more than you hit the pocketbooks.”

Repeating the same fallacy doesn't make it true. Law enforcement agencies like cash and the federal loophole that allows them to keep 80% of what they seize. What they don't like is the work that comes with actually dismantling drug cartels which, at some point, has to involve drug seizures and arrests, rather than pocketing cash and sending drivers on their way.

The state's law enforcement agencies have a chance to do some truly great things with forfeiture money. As was noted earlier, adding arrests to seizures routes funds to the state's public school system. Rather than be an active contributor to their communities -- both by funding schools and actually taking drug runners off the street -- cops are seizing cash and asking the feds to launder the proceeds so they can bypass local schools and any pretense of stopping the flow of drugs into the state.

Of the $19 million collected in asset forfeitures over the past three years, $340,000 has gone to schools. That’s less than 2 cents on the dollar. Most of the rest of the money went to law-enforcement agencies for new equipment, squad cars, weapons, ammunition and jail cells.

Legislators enacted reforms almost two decades ago. Law enforcement immediately found a way to circumvent these restrictions. For a brief moment a few years ago, the federal government closed the escape hatch. That has been reopened and it certainly won't be closing again while Trump is in office. Fortunately, state legislators are aware of what's happening and are attempting to close this loophole.

Missouri State Rep. Shamed Dogan, R-Ballwin, has tried unsuccessfully during recent legislative sessions to pass a reform measure that would reduce the number of forfeitures that go the federal Equitable Sharing route and thus circumvent state law. Opposition from law-enforcement groups has kept the proposal bottled up in committee.

Dogan is considering two forms of the bill. One would bar officers from sending forfeitures of less than $100,000 to the federal program. An alternative, more palatable to law enforcement, would set the cap at $50,000. In other words, the small seizures would have to comply with state law, while the big seizures could go the federal route.

Doing this would force state cops to play by the rules set up in 1991 -- the ones that gave the state residents some of the best protections in the country. It would make them focus on actually stopping the drug trade, rather than directly profiting from it.

Filed Under: asset forfeiture, forfeiture, missouri, schools

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

from the asset-forfeiture-gone-mad dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bless her heart. Oh wait.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court Tells DEA To Stop Pushing Burden Of Proof Back On Claimants In Forfeiture Case

from the procedures-matter dept

The government has lost its claim to money lifted from two men by the DEA at the Cleveland airport. Despite agents being super-sure the money was either drug profits or intended for drug purchases, no charges were brought. But the DEA decided to keep the money -- $31,000 from one and $10,000 from the other -- for itself.

The Sixth Circuit Court of Appeals says not so fast. The decision [PDF] lets the government know it's jumping the gun on claiming sole ownership of this lifted cash. The opinion starts out with a brief description of how the cash-focused Drug Enforcement Agency starts each airport workday.

The parties dispute most of the facts underlying this action. We begin where they find common agreement, drawing these details from the pleadings. On February 24, 2016, Taiwan Wiggins and Dalante Allison (together, "claimants") were each at the Cleveland Hopkins International Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA) was aware of the claimants' itineraries and that each had previous felony drug convictions. The DEA observed them at the airport engaging in conversation before they walked together toward the security checkpoint.

As we've discussed before, the DEA takes great interest in certain travelers -- even going so far as to ask TSA agents to be on the lookout for cash during bag inspections and X-ray screenings. Here, the DEA appeared to hit the jackpot (in more ways than one): traveler with previous convictions and tickets to California. As the multiple law enforcement officers have sworn in multiple court statements, the only reason anyone travels to California is to buy drugs. (Conversely, the only reason to leave California is to go sell the drugs they just purchased.)

The DEA took the cash from the two men, ran a dog past it, and announced the dog said the DEA could keep the money. The government then filed for forfeiture under the theory the money was drug-related. Both men submitted affidavits stating the money was theirs and was seized illegally.

The court took the affidavits and set a date for discovery to see if the men could stake a legal claim to the seized cash; i.e. prove it was legally obtained. The DEA decided to do things out of order. It moved to strike the men's claims. The district court agreed, finding the men had made nothing but "naked assertions of ownership" -- far below the evidentiary standard needed to reclaim the seized cash.

Open-and-shut… or so the DEA thought. The men appealed and the Appeals Court finds the lower court also skipped a step when arriving at its conclusion. As it states during its long discussion of forfeiture proceedings, the lower court shifted the burden of proof to the wrong party at this early stage.

Rule G(5) requires claimants to do no more than identify themselves and state their interest in the property subject to forfeiture. The government, on the contrary, wants claimants to provide additional detail, a position that it attempts to justify as a means to ward off false claims and to give it a starting point to draft its special interrogatories pursuant to Rule G(6). Nowhere in the text of Rule G do we see any support for this approach, and our case law demonstrates why it is not necessary. First, the would-be claimant must demonstrate Article III standing, which, at the pleading stage, necessarily requires that the claimant allege the facts necessary to satisfy Lujan’s “irreducible constitutional minimum of standing.” See Lujan, 504 U.S. at 560. Second, a claimant’s ability to proceed under Rule G, which we have called “statutory standing,” is satisfied through mere compliance with the rule, see Real Props. & Premises, 521 F. App’x at 384, and we see no persuasive reason to import a heightened pleading standard that has no basis in the text. And third, we have held that Rule G’s verification requirement is a built-in preventative measure that limits the danger of false claims. One Men’s Rolex Pearl Master Watch, 357 F. App’x at 627.

As the appeals court points out, the government wants too much too soon, and when it doesn't get it, it wants to take the money and run. But so far, all the court has to work with are competing allegations about the legality of the cash, and the government doesn't get to pretend its claim has more value.

Here, where the government alleged that it took a bundle of cash from a claimant’s suitcase, and each claimant stated that he owned the cash, there is a clear allegation of ownership that satisfies Article III. And the claimant’s making of such a statement is what satisfies Rule G’s statutory standing requirement. Therefore, at least at this stage in the litigation, there was no basis on which the district court could strike the claim.

There is no sympathy for the DEA in the Sixth Circuit:

The government sings a sirens’ song about the value of high pleading standards and the benefits it will receive from forcing claimants to support their claims from the outset of a forfeiture proceeding. But all of the government’s arguments rest on flawed assumptions about the procedural rules governing in rem forfeiture cases.

And if the government doesn't like it, it's welcome to take it up with… the government.

If Congress wishes to add an additional layer of protection to the statutory requirements by having claimants state their interest with specificity, it may. But a panel of our court is not the proper body to do so.

To close things out, the court points out in detail the wrongness of the government's position. The government's assertions suggest inverting what little there is of due process in forfeiture proceedings.

Finally, we note our concern that the government's approach would turn the burden of proof in forfeiture actions on its head. Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the government bears the burden of proving by a preponderance of evidence that the subject of a civil forfeiture action is, in fact, forfeitable. Requiring a forfeiture claimant to explain the nature of his ownership at the pleading stage would be asking the claimant to satisfy the government's burden of proof, or at least go a long way toward doing so.

Back the case goes to the lower court with all the correct steps -- and a modicum of due process -- revived. The government may still be able to retain possession of the seized cash, but it needs to provide at least some evidence it wasn't legally obtained first.

Filed Under: 6th circuit, asset forfeiture, burden of proof, dea, forfeiture

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