Radley Balko has an interesting article in Reason detailing the many abuses of the asset forfeiture system, which often allows police to seize property without compensation – even in cases where the owners have not been convicted of any crime:
Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.
Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently.
As I have argued elsewhere, many such seizures are a fairly blatant violation of the Due Process Clause of the Fourteenth Amendment, which bars state seizures of “property” without “due process of law.” In many cases, the authorities hold on to the seized property for months at a time without giving innocent owners any opportunity to contest the seizure whatsoever. If that isn’t deprivation of property without “due process,” it’s hard to see what is. The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out the case on procedural grounds. Hopefully, the issue will make its way back to the Supremes, and they will see fit to give innocent property owners at least some protection for their constitutional rights.
I am not optimistic that the political process will protect these rights on its own. As Radley explains, police departments and prosecutors in many areas have a vested interest in perpetuating these practices. In addition, most of the people whose property is seized in this way are relatively poor and lacking in political influence. There have been a few modest reforms over the years. But for reasons Radley outlines, they have only addressed a small part of the problem.
Is Asset Forfeiture a “License to Steal”? | Little Miss Attila says:
[...] yes. I do believe that it can be exactly [...]
February 1, 2010, 2:57 amOrin Kerr says:
Ilya,
Isn’t asset forfeiture a somewhat different procedure? I thought it referred specifically to an in rem court proceeding seeking to transfer ownership rights in the item to the government, not just a seizure of property by the government.
February 1, 2010, 3:04 amIlya Somin says:
Isn’t asset forfeiture a somewhat different procedure? I thought it referred specifically to an in rem court proceeding seeking to transfer ownership rights in the item to the government, not just a seizure of property by the government.
The seizure happens first. Then the government decides whether it wants to try for an asset forfeiture. However, as I explained in the linked posts, often it holds the property for months at a time even before any asset forfeiture proceedings begin (which I think is a blatant violation of the Due Process Clause). When it does decide to try to go for a forfeiture, you get the sorts of problems discussed in Balko’s article (procedures biased in favor of the government; even innocent property owners often losing their property, and so on). I think much of this also violates the Due Process Clause, though the Supreme Court ruled otherwise in the closely divided 1996 Bennis case, which I hope the Court will either limit or overrule.
February 1, 2010, 3:23 amMike McDougal says:
When people act on those interests, they have a term for it: corruption.
February 1, 2010, 3:25 amJay says:
I’m sure I’ll get flamed for asking this, but are there examples of actually innocent property owners being permanently deprived of their property? Yes, I understand that criminal liability requires proof BRD, etc, but the argument from the Balko side would be a lot more convincing/politically persuasive if it showed that any bundles of $100 bills seized weren’t actually from drug dealers.
February 1, 2010, 3:47 amIlya Somin says:
are there examples of actually innocent property owners being permanently deprived of their property? Yes, I understand that criminal liability requires proof BRD, etc, but the argument from the Balko side would be a lot more convincing/politically persuasive if it showed that any bundles of $100 bills seized weren’t actually from drug dealers.
The Alvarez case (described in my links) was such an example. Also, some cases that Balko discusses in his article. In many cases, of course, the people in question never came to trial, so we haven’t had a complete airing of the evidence. But it’s a fair bet that many cases where no charges were filed (or charges were dropped) are cases of actual innocence. It’s also worth nothing that many of these cases don’t involve “bundles of $100 bills” but things like cars, houses, and the like.
February 1, 2010, 3:55 amfjfjfjfjfjfjfjfj says:
What historical precedents are there for similar asset forfeiture schemes, in which enforcement authorities directly benefit from confiscated assets?
Ancient Rome had a system in which people who accused traitors could obtain their assets. I believe the Inquisition worked this way as well, the Inquisitors getting the assets of accused heretics.
Are there other more recent examples?
February 1, 2010, 5:13 amDYSPEPSIA GENERATION » Blog Archive » Asset Forfeiture: “A License to Steal” says:
[...] Read it. [...]
February 1, 2010, 7:58 amWidmerpool says:
I will gladly confiscate your hamburger today which you may seek to recover next Tuesday.
February 1, 2010, 8:31 amPersonFromPorlock says:
I’ve suggested elsewhere that it would be a Good Thing if all fines and forfeitures (the latter realized as cash) were seized by the state, put into a common pot and shared out annually among the state’s taxpayers. The state could then tax back some of the money distributed but would be unlikely to recover all of it, the taxpayers being reluctant to pay more than they have to.
This would both eliminate the profit motive for corrupt fines and forfeitures and put government agency funding at every level back under the direct control of elected officials.
February 1, 2010, 8:37 amPersonFromPorlock says:
Should have said “In-state government at all levels could then tax back….” Apologies for not being clearer.
February 1, 2010, 8:51 amGuest Again says:
“I’m sure I’ll get flamed for asking this, but are there examples of actually innocent property owners being permanently deprived of their property?”
I represented the fee owner of a house(pre-the 1996 Bennis case)that had been sold on land contract to a nice retired school teacher. After she died her nephew moved into the house (and stopped making the lc payments)and started dealing drugs within 100 yards of a school. I had commenced a forfeiture proceeding to recover the property, when the “joint fed state local” task force “seized” the house. The circuit judge was not at all willing to listen to my fee owner’s arguments:-I had nothing to do with this-I simply own the house- you can’t seize it, the drug dealer simply moved in uninvited, due process claims. Fortunately, my client got sympathy (politically favored) from the task force because he was a fellow Detroit cop and they withdrew the seizure. But I had no doubt that had they not done so he would have lost the house.
February 1, 2010, 8:53 amAsset Forfeiture: “A License to Steal” « Daniel Joseph Smith says:
[...] Asset Forfeiture: “A License to Steal” [...]
February 1, 2010, 9:09 amMidlantan says:
Orin is right that the seizure process is a little different from asset forfeiture. Seizure is what happens first (generally), and involves taking property without a full adversarial hearing on the merits. That does strike many people as lacking in due process protections, but the standard for seizing property involved in crime for forfeiture purposes is essentially the same as seizing it as part of a search. I’m just wondering, Ilya, if that’s part of your objection. Or is the objection that, once seized, the government can hang onto it for too long without having a fuller hearing? As the Balko article points out, if federal authorities are seizing, federal law such as CAFRA imposes some time limits and heightened proof standards, but I suspect you may not think those are enough (either in theory or practice).
And in response to fj, there is considerable historical precedent, going back to British law of the 15th or 16th century. (The standard example, if I recall correctly, being that property like that is used to commit a crime or even a tort, like a lamppost that falls and kills someone, can be forfeited to the crown.)
Which is not to say that forfeiture as practiced is perfect, or even that it’s not deeply flawed. Just trying to suss out Ilya’s thoughts. I definitely understand the objections to indefinite seizures without a hearing. But do you, Ilya, or others, think that property seizures ought to be subject to, say, the same standard of proof as a criminal conviction? Is that the level of process that’s “due”?
February 1, 2010, 9:19 amDavid M. Nieporent says:
I don’t speak for anyone else, but I do. If, e.g., the penalty for simple drug possession is up to 12 months in jail and a $500 fine, the government can’t collect 1 penny of that fine without proof beyond a reasonable doubt. But if you happen to be carrying $500 on you when arrested, the police can just declare that they have probable cause to think it’s the proceeds of a crime, keep it, and force you to prove your own innocence to get it back – something that isn’t even economical for $500.
Moreover, while a magistrate’s pay can’t be conditioned even a little bit on issuing warrants, police and prosecutors can retain the items they seize for their own use.
February 1, 2010, 9:52 amRobert Grant says:
Forgive me, I’m from the UK, but I don’t understand why permanent asset seizure is legal at all. I can understand assets being ‘impounded’ pending search or as evidence, but then they should be handed back to the owner surely, especially in the case where the owner is not charged with any crime or the asset proves to be immaterial to the case.
If you rent your property to someone and they subsequently use it as a grow-house then, as an innocent party, surely you shouldn’t lose your house? If someone steals your car and uses it in commission of a bank robbery, surely you should get it back after the trial? I may be wrong but if someone robs a bank and goes to jail, their family aren’t thrown into the streets because the house is seized are they?
Just the very idea of permanent asset seizure rings alarm bells of curruption with me.
February 1, 2010, 9:58 amRobert Grant says:
Forgive me, I’m from the UK, but I don’t understand why permanent asset seizure is legal at all. I can understand assets being ‘impounded’ pending search or as evidence, but then they should be handed back to the owner surely, especially in the case where the owner is not charged with any crime or the asset proves to be immaterial to the case.
If you rent your property to someone and they subsequently use it as a grow-house then, as an innocent party, surely you shouldn’t lose your house? If someone steals your car and uses it in commission of a bank robbery, surely you should get it back after the trial? I may be wrong but if someone robs a bank and goes to jail, their family aren’t thrown into the streets because the house is seized are they?
Just the very idea of permanent asset seizure rings alarm bells of curruption with me.
February 1, 2010, 9:58 amjccamp says:
A few things:
If something of value is seized at the time of arrest – or prior to arrest as sometimes happens – the civil forfeiture is usually secondary to the criminal case. The government may be loathe to reveal trial strategy and specific testimony in the civil case before the criminal trial, plus assuming a favorable resolution to the criminal case – I mean favorable to the people, a guilty verdict or plea – the civil case may then resolved by plea as well.
So the Due Process argument is a result of the criminal vs civil dynamic, in which the criminal process takes precedence. I would assume the person whose property has been seized can always file civil process seeking return of property, forcing the matter to be litigated, this forcing the government to defend its actions or return the property.
Also, the article by Balko, is, like others he has written, more than a little one-sided. That’s what he does – advocacy. However, in the marquee case he cites, he neglects some aspects of the issue. He expresses shock that “Incredibly, Gambill was arguing that the county could seize Smelley’s money for a crime that hadn’t yet been committed.” I think the Indiana prosecutor argued that the young man was engaged in a conspiracy to traffic in drugs. That’s hardly shocking or revolutionary. It would be appropriate if, say, one of the other occupants of the car admitted to officers that they were going to buy drugs, or if there were additional evidence of such that Balko failed to mention. That someone would drive around at 3:00 AM with $17,000 in cash in his pocket (for an needy aunt, no less), as opposed to bringing a checkbook, say, and then would lie about having money to the cops, is telling. There are probably 2 sides to this story – as usual – and we’re only seeing one of them.
Asset seizure does lower the tax bill. I agree that there are (hopefully rare) deliberate abuses and, more likely, lax practices that need correction. However, this idea that law enforcement agencies and prosecutors routinely engage in bad-faith seizures is simply untrue.
In many cases, the actual cost to government of seizing, storing, maintaining and eventually forfeiting the assets far exceeds the value of the items. However, the process serves as an additional sanction for criminal defendants, and the intrinsic worth of the program should be judged in that light (for instance, denying fruits of a crime to criminals), not as a money-maker for government.
February 1, 2010, 10:02 amSeaDrive says:
Neither can most US citizens.
I dare say that most of the law-abiding public is unaware of the practice, and would declare it unconstitutional on the spot if asked.
February 1, 2010, 10:05 amCornellian says:
If a government can get away with anything by using one of the two magic phrases “tough on crime” and “for the sake of the children” and if a government has an insatiable thirst for money (as they all do), should we be surprised that politicians eventually connect the latter with the former?
February 1, 2010, 10:07 amLTEC says:
We started out with the statement that the government should not engage in arbitrary search and seizure. But how to enforce it? Some smart people decided that the only way possible was to disallow the fruit of bad searches and seizures to be used as evidence. Then some other smart people forgot that this rule was supposed to be a means to the end of stopping bad searches and seizures, and instead thought it was a means to the end of employing lawyers and getting guilty people off. So as long as seizures aren’t being used to convict, and are employing lawyers, what could be wrong with them?
February 1, 2010, 10:14 amjccamp says:
Robert Grant –
If the property owner has no knowledge and/or has no intentionally allowed someone to use his/her property to break the law, then they do not suffer asset forfeiture. But to use one of your examples, I rob banks. I title my car in my mother’s name (specifically to protect against seizure). The second or third time that I am caught driving away from a bank robbery in Mom’s car – really mine but on paper, hers – Mom’s car is in jeopardy of seizure. The first time it happened, Mother got her car back. When it happens again – or a third time – she cannot claim she is innocent of the knowledge I am using the car to violate the law.
Another: I have no legal source of income. No job, I pay no income taxes, no gifts, no inheritance, no lawsuits. I stand accused of running a multi-million unlawful dollar drug sales ring. When I am convicted, should I be allowed to retain the mansion, the Porsche, the jewelry, the boat, or should the government be allowed the opportunity to make their case in court, in front of an impartial magistrate, that all my magically acquired assets are the fruits of my drug scheme?
To do otherwise is to allow criminals to essentially fund an IRA for their golden years, after spending some enforced time at the local prison.
February 1, 2010, 10:23 amA. Criminal says:
The excuses and weird logic that people here are providing to justify these thefts are pretty creepy, e.g. “if it showed that any bundles of $100 bills seized weren’t actually from drug dealers” implies that people are now expected to prove themselves innocent. Or “In many cases, the actual cost to government of seizing, storing, maintaining and eventually forfeiting the assets far exceeds the value of the items.” Oh, God, the poor little dears suffer so! It must be awful to have to spend other peoples’ money storing someone else’s stuff.
Article: According to the police report, the dog gave two indications that narcotics might be present.
“Sit, boy!” = probable cause. What a joke.
…police departments and prosecutors in many areas have a vested interest in perpetuating these practices.
Police departments and and prosecutors in many ares are thieves. What a joke.
Speaking of jokes, why hasn’t the Panty Bomber already been convicted and executed? With the many witnesses and physical evidence it shouldn’t take more than a few days, perhaps a week, to get that case out of the way. When did these incredibly drawn-out procedures, which are nothing but lawyers screwing around to pad the billing and scam some job security, become S.O.P.?
And speaking of more jokes, what do you call a lawyer with a 2-digit IQ?
February 1, 2010, 10:25 am“Your Honor.”
RowerinVa says:
Having been on three sides of this issue (Private IP owner counsel seeking forfeiture via federal agents; law enforcer; defendant’s counsel), I think the post may exaggerate the facts. I’m sure there are some abuses. But in what percentage of cases?
What usually happened in my experience was:
(1) the government had very good cause to seize, and without seizure there was every reason to believe that the property would disappear (if portable) or be destroyed (if real estate or not portable); and
(2) due process was quite available to the owners; but
(3) the owners either fled (never identifying themselves) or made no attempt to recover the property, often totally disavowing association with it, i.e., “I have no idea what that brick of $10,000 in 20 dollar bills was doing in my house. This guy Bob may have left it here but I’ve only seen him that once.”
Thus it wasn’t a case of lack of due process. It was a case of the (probable) perp not bothering to engage in the process.
There is a huge difference from the foregoing facts and Kelo. And there is certainly a whole can of policy questions raised by a situation where the police find that it’s easy to do the foregoing. But “due process” doesn’t quite capture the typical facts and issues here, in my experience.
February 1, 2010, 10:58 amBuddy Hinton says:
I think these forfeiture cases are interesting because they highlight the evidentiary differences that have emerged as between civil and criminal trials.
For example, in a criminal trial (at least in many jurisdictions) one can submit a drug sniffing dog’s “indication” as evidence, merely upon showing that the dog completed training, and without showing that the dog passed any sort of double blind test of its accuracy. That kind of thing would not fly in a civil suit. Plaintiff would need to prove the dog is accurate with scientifically acceptable testing. These forfeiture suits will give a real good way of probing police evidence that simply cannot be probed in the context of criminal trials.
As another example, police bias does not get probed in criminal trials. The defense attorney cannot ask: will the fact that you arrested the defendant help your career and help you get pay raises? if the defendant is convicted on your testimony, then will that help your career even more and help you make more money? In a forfeiture proceeding, this line of questioning will be fair game if it is not already.
In other words, over the long run, asset forfeiture proceedings may do more harm than good.
I think the due process violation occurs when:
1. police seize
2. forfeiture lawyer initiates forfeiture
3. property owner fights forfeiture
4. forfeiture lawyer decides not to forfeit and gives property back a long time after it was seized.
There should be substantial and mandatory compensation in these cases. This is where the real abuse occurs. If the state knew that it had to pay to play, it would think twice about which property to seize and how long to diddle around. In fact, the forfeiture lawyer should be required to put money into a bond or escrow to compensate for lost use of the property as this measure of compensation accrues starting right from the day of seizure. That way, if the forfeiture lawyer decides to give up at the eleventh hour, the owner can get the lost-use value as soon as she gets her property back. If the forfeiture lawyer wins, then she can have her escrowed money back, of course.
February 1, 2010, 11:16 amBuddy Hinton says:
won’t let me edit. correction:
–ay do more good than harm–
February 1, 2010, 11:19 amShelbyC says:
Agreed. The use of dogs as PC needs to be revisited.
February 1, 2010, 11:38 amFub says:
When due process entails paying more than $10,000 in legal fees, court costs and lost time to regain the confiscated bills, a completely innocent but economically rational actor would decide on that basis alone not to proceed in a legal process that is already stacked against him.
The factual basis of the decision is orthogonal to the factual basis of actual guilt or innocence.
February 1, 2010, 11:42 amSeaDrive says:
IANAL.
Wikipedia says:
It takes a Kafka to think this up. On the other hand, perhaps the property can buy some campaign advertising.
February 1, 2010, 11:46 amrmd says:
Good question and I have no idea what the answer is. But what percentage of abuse is acceptable to you?
February 1, 2010, 11:46 amShelbyC says:
You forgot to mention the “perps” who decided that spending $3000 on a lawyer to recover $1500 siezed because a dog said it smelled drugs on the money just wasn’t worth it.
February 1, 2010, 11:57 amArthurKirkland says:
(1) I oppose forfeiture in most circumstances. The incentive-and-accountability framework is fundamentally wrong. It corrodes themes of presumption of innocence and proper exercise of (and benefit from) power.
Some years ago, brewers and alcohol wholesalers in several states noticed that “tap wagons” (mobile dispensing devices) were being seized in sketchy circumstances in which, formerly, the penalty for an alleged regulatory violation might have been a written warning or a small fine. They discovered that the insulated wagons were coveted by state and local governments for use in transporting cargo such as fishery hatchlings and vaccines. The owners assumed that a law enforcement official had mentioned something at an interstate convention. When the pattern was explained to some governors, the seizures and forfeitures stopped and, in some cases, the wagons were returned, reeking of fish.
(2) Has anyone ever encountered a circumstance in which a police dog, its handlers or trainers sustained any disadvantage for too many false positives?
(3) This is yet another problem that would be solved by decommissioning the drug warriors.
February 1, 2010, 12:12 pmKevin P. says:
If you are convicted of a criminal offense, then the government should be allowed to make an argument at the same criminal trial that it should seize your ill gotten proceeds.
Civil forfeiture seizures, on the other hand, often do not involve any criminal charges being filed against the citizen whose property was seized, much less any criminal conviction.
February 1, 2010, 12:25 pmRowerinVa says:
rmd asks, “what percentage of abuse is acceptable to you?” Interesting question, and I’m not sure I know the answer. On one level, “zero” is the only acceptable answer; however, seeing as we live in a real world where tradeoffs are inevitable, it’s a nonzero percentage. I would need some data to calculate harms and benefits. Again, there is a “process” offered. Whether it qualifies as “due” process gets into a hard question about what’s “due.”
ShelbyC says “You forgot to mention the “perps” who decided that spending $3000 on a lawyer to recover $1500 siezed because a dog said it smelled drugs on the money just wasn’t worth it.” Didn’t forget, just didn’t want to bore you, but since you’ve joined the issue: sounds like a great class action. Wow, at $1500 per plaintiff, that’s a pot of gold for a plaintiff’s lawyer. Unless you think that you aren’t going to win many of these cases ….
The “it’s too small money for people to fight back” is a potential problem but it proves way too much. Are we to assume that the IRS cheats every American $1500 on his tax returns? That Social Security cheats every recipient by that amount? If abuse is widespread, even at low amounts, you would expect to see aggregated legal actions at some point.
February 1, 2010, 12:26 pmBubba Love says:
So from what I’ve been reading here if a police dog indicates he smells dope on money cops can take it? Money goes through many hands, it’s unlikely the dope smell will magically go away as it goes from the dope dealer through a bunch of other people down to whoever is unlucky enough to have the dog sniff it. I remember reading somewhere that a rather large % of U.S. currency has traces of cocaine on it, it seems to me the odds are pretty good the cops pooch is going to sniff dope on almost any money presented to it.
February 1, 2010, 12:29 pmNI says:
25 years ago I took a job at the opposite end of the country, reduced all my assets to cash (a little less than $100,000) and drove cross country to my new job and my new life. The trip was uneventful; both I and my cash made it to our new destination. But I’ve often wondered since then, had I been stopped for speeding in some rural jurisdiction between Seattle and Boston and my car been searched, how hard would it have been to persuade the local police that the money wasn’t drug proceeds? I’m betting I would have lost it.
Granted, I probably exercised poor judgment in transporting that much money in a five-day cross-country auto trip. But still, doing so was perfectly legal and the money had been lawfully acquired in the first place. I’m still betting I would have lost it.
February 1, 2010, 12:30 pmnobody says:
Land of the free? What a laugh, or better said, what a shame.
The US has an extremely clever dictatorship in place, and not since today, it started right after the civil war.
I wonder why my parents generation thought that the US was a bastion of freedom, as it gets more clear each year what a blatant lie this is.
February 1, 2010, 12:34 pmMike McDougal says:
Then the government will have no problem with making that burdern lighter through tougher regulations on seizure.
February 1, 2010, 12:35 pmMike McDougal says:
90% of U.S. currency has cocaine residue on it according to this article.
February 1, 2010, 12:37 pmegd says:
More than likely.
Snopes says roughly 80%. Which is pretty impressive.
It’s no wonder that police dogs indicate drug possession in so many of these innocent cases.
February 1, 2010, 12:51 pmNsurgNt says:
http://www.fear.org/ This is the website of Forfeiture Endangers Americans Rights. Please check it out to learn more about this abhorrent practice.
February 1, 2010, 12:55 pmSeaDrive says:
Some years ago, I read about a couple Vietnamese immigrants who were driving down to the Gulf coast to buy a commercial fishing boat and had $30,000 in cash for the down payment. They were stopped and the money was seized. I believe they got the money back, but only after considerable delay, hassle, and legal expenses. Being new in the country, they had no idea of the restrictions on large amounts of cash, and may have been victims of discrimination as well.
There is a sort of statistical sampling problem. Cops frequently encounter people with drug money. They much less often encounter people with large sums of money, or diamonds, or whatever who are going about their legal business. Their notion of what is “probable” is skewed.
February 1, 2010, 12:56 pmFub says:
Canadian class action case mentioned here, initial claim is here (PDF).
Report of a recent Chicago class action case: Alvarez v. Smith (08-351). Goldwater Institute files amicus.
News (old, 2001) of a contemplated class action suit in Idaho.
February 1, 2010, 1:01 pmMichael Ejercito says:
They should be subject to proof with a preponderance of evidence.
February 1, 2010, 1:03 pmShelbyC says:
If the reason for the seizure is that the property was used in furtherance of a crime, or similar, they should be allowed only as part of a sentence for criminal activity.
February 1, 2010, 1:11 pmRowerinVa says:
You’re still missing the point of my original post. My experience isn’t that people are objecting to the seizures, and losing. It’s that they aren’t objecting at all. When police say “What’s this $10,000 doing here?” they are shrugging and saying, “Dunno, it ain’t mine,” and slipping away. In what percentage of cases do people object at all, to any significant degree (not just by litigating), and lose? I’m not talking about a $10,000 court case, Fub, I’m talking about any kind of pushback. At all. (Guest Again mentioned a situation but the owner did push back, and prevailed immediately, just by asking … so that’s not contra to my point.)
Now, there are very serious issues with letting the police keep all or even part of that property. “Due process” isn’t the problem, however, if people aren’t even trying to engage in a process.
Yes, the police should have probable cause before they put a hand on anything. But the post assumes that part of the question already.
Let’s put it differently, to illustrate the problem I’ve seen. Police with a warrant enter a house. Find $10,000 sitting on a table, with drugs and a gun. All five residents of the house say the money and stash and gun isn’t theirs. None asks for it back. Ok ….
Some posters here want the police to have to file a criminal case against someone, in order to seize the property. Who’s the defendant? All five residents disclaim ownership. You have no probable cause to file an indictment against any one of the five. You want the police to have to put the stuff back in that house, where NOBODY claims ownership? (Perhaps not the drugs, but the money and the gun? Or should they put back the drugs too?)
That’s the real world situation.
February 1, 2010, 1:14 pmBuddy Hinton says:
What is even better, if the state’s attorneys start locking people up using civil suits and injunctions, rather than criminal trials and convictions, then we could have a preponderance standard for that, too, and also the duration of the confinement would not be so limited as it is now. Also, the police could stop worrying about 4a and 6a (to the extent they do).
The important thing isn’t whether the state is meting out substantive punishment for substantively criminal behavior / attitude. For Constitutional purposes, the important thing is whether the legal response is classified as “civil” or “criminal.” because any punishment could be reclassified as “civil,” there is a golden opportunity for the crime fighters of America, and asset forfeiture is just baby steps toward bigger things to come.
February 1, 2010, 1:18 pmShelbyC says:
I don’t know much ’bout none of this fancy lawyerin stuff er nuttin, but don’t the plaintifs in a class action gotta be similarly sitcherated? And since dern near everbody gets thur mony stolled in different circumstances, I dunno if that’d work.
February 1, 2010, 1:26 pmShelbyC says:
Wait, I guess I was wrong in my above post, it does work in some cases.
February 1, 2010, 1:31 pmjccamp says:
I’ll try to answer a few, not necessarily related:
Buddy Hinton -
“…merely upon showing that the dog completed training, and without showing that the dog passed any sort of double blind test of its accuracy…”
Most – or all – government drug detector dogs are certified by one of several national organizations. They may also (like in my state) have to pass a state exam. The certification process includes repeated blind detection tests, run by an licensed outsider, and is usually renewed annually. I will grant that this does not mean an experienced handler cannot generate a false alert when desired. Hopefully, that does not happen much.
Most currency – at least in some urban areas – is tainted with trace amounts of narcotics. The mere presence of a trace amount (a detectable amount) of unlawful drugs on currency is almost certainly insufficient – on its own – to seize that currency. The cops don’t have the dog sniff your folding money and grab it if the dogs indicates the presence of trace amounts of drugs. If the money is in a briefcase or grocery bag with some weight of drugs, then you probably can kiss the cash goodbye.
Arthur K -
“This is yet another problem that would be solved by decommissioning the drug warriors.”
Agreed. But until the elected official do so, the cops’ legal obligation is to enforce those pesky laws about unlawful trafficking and so forth. Cops don’t create the laws, though their behavior does contribute in many cases to the resultant case law.
NI –
Maybe so. But maybe not. Why mention it if it didn’t happen, didn’t come close to happening, never came up, etc.
Mike McDougal –
“Then the government will have no problem with making that burdern lighter through tougher regulations on seizure.”
The government probably will. I won’t.
egd –
“It’s no wonder that police dogs indicate drug possession in so many of these innocent cases.”
Which cases are those? In the case cited by Balko, the police dog alerted for drugs. Although no drugs were found, a drug pipe was found and that may be what the dog smelled, although the actual amount of drugs present were beyond the ability of the cops to see.
Bubba Love –
“So from what I’ve been reading here if a police dog indicates he smells dope on money cops can take it?”
No, that is incorrect. I’m not saying it’s never happened, only that it’s an insufficient basis (for a seizure).
February 1, 2010, 1:48 pmNickM says:
Of course, there is a long tradition of government being able to take property from you on proof by a preponderance of the evidence. It’s called the civil tort system. A neighbor of mine is going through that right now – she was involved in a car accident with a school bus. The district has sued her (they’re claiming damages well in excess of her insurance coverage).
Any analytical framework for forfeiture of property should take into account the different standards of proof for crime and tort.
Nick
February 1, 2010, 1:49 pmjccamp says:
I’d suggest one more thing for consideration. If there was a small town known as a speed trap, for notoriously enforcing the speed limits merely as a mean of revenue collection, would you recommend suspending all of the speed limits, or taking some action against that organization which proved incapable of acting in good faith?
Setting aside for the moment those inevitable replies of “Hell yes, let me drive!”, may not the best resolution be to repair the faults (within the process), rather than to allow criminals to reap the rewards of criminal acts to the detriment of us all.
February 1, 2010, 1:53 pmjccamp says:
BTW, the OP was about Due Process, or the lack of a remedy if one’s property was seized. If there is a concomitant criminal case, then the Due Process may depend on the timing of the criminal case. I’m not sure there’s a way around that. However, if there is no criminal case accompanying the seizure – the main complaint, I think – then government should provide a formal and structured procedure for the owner to seek redress. There is always civil court, although, for instance, in some places which have ordinances allowing cars to be seized and held for minor crimes like DUI or prostitution (for instance), there is also a non-judicial (maybe quasi-judicial is more accurate) board which hears testimony and renders a decision (about the seizure) without requiring the presence of an attorney for the owner. The board must hear a appeal to the seizure within a fairly short and specific time period.
Would that suffice to answer at least some of the issues?
February 1, 2010, 2:05 pmMichael Ejercito says:
In the civil tort system, the state is allowed to confiscate property for redistribution to others; in fact, that is how the civil tort system works . The preponderance of evidence standard is used in civil tort claims.
February 1, 2010, 2:07 pmAnym_Avey says:
You must mean a town like New Rome, Ohio?
The motivation for shutting them down was clear enough, in fact the town was featured in Car & Driver a couple times.
If this is the model for removing irregular behavior in asset forfeitures amongst law-enforcement entities that generally need to exist for other reasons, then good luck. New Rome had a population of less than 100 persons and no good reason to be incorporated, and it still took years of complaints culminating in coordinated state and legal action to get rid of the problem.
February 1, 2010, 2:13 pmDavid M. Nieporent says:
Key words that change the topic of this discussion.
Nobody is against forfeiture after conviction.
February 1, 2010, 2:17 pmShelbyC says:
Of course they do. See here, here, and a couple of cases where the courts backed the good guys here, and here.
February 1, 2010, 2:21 pmDavid M. Nieporent says:
Really? You think it’s routine that police have sufficient probable cause to obtain a warrant, that they enter a house pursuant to that warrant, that they find drugs in that house, and then they decide that they don’t have probable cause to arrest anybody merely because all five residents of the house say that the drugs aren’t theirs?
February 1, 2010, 2:27 pmjccamp says:
David –
Then the assets must remain in government custody pending disposition of the criminal case? I agree with that, and the time delay aside, I suspect most might not mind this either.
In practice, in my personal experience (which is considerable but only applies to one or two jurisdictions), absent a criminal conviction, most forfeitures proceeded only when there was no one who could (or would) credibly claim ownership and there was a weight of evidence indicative of a criminal act, even if no person was charged.
A naked forfeiture suit, absent a companion criminal charge, against an individual was unusual (barring those times when the named individual was considered a straw owner).
February 1, 2010, 2:28 pmFub says:
So someone stopped by a policeman intent on seizing his honestly obtained cash should also give the policeman an excuse to arrest him for “contempt of cop”? As police are fond of saying, “You may beat the rap but you can’t beat the ride.”
To quote Guest Again exactly [my emphasis added]:
Not everybody is a “fellow cop”.
February 1, 2010, 2:41 pmjccamp says:
Shelby -
In both of the two links, there was no case cited in which the dog’s alert was the sole basis for a seizure. There were other circumstances alleged by the cops.
In the first link, a former AUSA who used to do asset forfeiture said the seizure was probably defective. Here’s my original quote “I’m not saying it’s never happened, only that it’s an insufficient basis (for a seizure).”
In fact, in the second link, the male abandoned the money (the cash that he didn’t know where it came from) and never tried to get it back. You know, just like a drug courier would do. Had the elusive Mr Perez asked for the money back, maybe he would have prevailed.
February 1, 2010, 2:42 pmBuddy Hinton says:
yes, that is the beauty of the plan. We simply renominate selected crimes as torts, and associated punishments as tort remedies. This has the practical effect of requiring a lot less due process (eg, beyond a reasonable doubt standard) and less rigorous 4a, 5a and 6a rights. Also, (to the extent it still exists) we can get rid the mens rea requirement. And we can do all of this by simply switching the name of the alleged bad thing from “crime” to “tort.” It is a brilliant plan and I have seen nothing to stop it. Mr. Balko just doesn’t get it.
Also, we know that abuses are infrequent because people who practice tortstyle criminal justice for a living assure us that this is the case. They would know better than us.
February 1, 2010, 2:43 pmjccamp says:
David –
“…then they decide that they don’t have probable cause to arrest anybody merely because all five residents of the house say that the drugs aren’t theirs?”
You must generally prove constructive possession. The mere presence in the same room as contraband does not establish such. If you can’t link any of those present by way of surveillance, utility bills, or the like, then no, no one goes to jail for all of the contraband, at least pending additional investigation and forensic examination for, say, fingerprints.
Happens all the time.
February 1, 2010, 2:46 pmBuddy Hinton says:
Another nice thing about asset forfeiture is that it decreases, in a sense, what police have to plant on a person to keep her stuff. If they want to seize a person’s money through the criminal law alone, by planting, then they will have to plant at least a pipe with residue, and probably something even more than that. However, if they merely are after the forfeiture, then they can merely plant a clean pipe. This is better for police because it decreases the level of criminal conduct they must commit to get the money. This is better for the citizen because the notoriety over the planted evidence that is irrefutably attributed to her will be less.
February 1, 2010, 2:54 pmegd says:
I don’t think anyone would object to the government claiming money that no one else is willing to claim. If no one has an interest in the money, then it’s not forfeiture.
The problem arises when the government takes property without any criminal prosecution. The government then has a lesser standard (probable cause) to keep the property than they would in obtaining a criminal conviction.
Asset forfeiture is the government’s way of punishing criminals (although sometimes non-criminals are caught up) without having to meet the higher burden of “beyond a reasonable doubt.”
February 1, 2010, 2:54 pmNI says:
Actually, I’d be happy if forfeitures were simply treated like other civil suits in which the burden remains at all times with the plaintiff. None of this nonsense about probable cause (which any reasonably creative cop can satisfy) after which the burden shifts to the owner to show the asset wasn’t the product of a crime or used in a crime. Nope; leave the burden at all times with the police of showing by a preponderance that the asset was connected to a crime. That would put a stop to most of the abuses.
February 1, 2010, 2:57 pmjccamp says:
egd -
“The problem arises when the government takes property without any criminal prosecution. The government then has a lesser standard (probable cause) to keep the property than they would in obtaining a criminal conviction.”
Agreed. This is probably where the abuses exist, and more scrutiny is justified. Such cases can be absolutely legitimate. But the opportunity for mischief lies here.
February 1, 2010, 2:58 pmArthurKirkland says:
Would support for the current seizure-and-forfeiture framework dissipate were it applied to white collar and political convicts as well as to less-polished convicts? The chance a Democratic administration would effect such a change strikes me as slim; the likelihood a Republican administration would do it seems so remote as to be unworthy of contemplation. But if a few billionaires were stripped clean, or if a couple of Scooter Libbys or William Jeffersons or Oliver Norths left penniless, I would expect the seizure-and-forfeiture system to be dismantled hastily.
I guess it will be up to the libertarian-liberal alliance to address the wrongs of drug war and forfeiture abuse.
February 1, 2010, 3:06 pmMichael Ejercito says:
Has imprisonment, nevermind execution, ever been used as a tort remedy?
I do not oppose asset forfeiture in principle, as long as the state has the burden of proof with a preponderance of evidence.
February 1, 2010, 3:22 pmBuddy Hinton says:
Not sure why that matters, but people’s movements have been restricted by civil injunction, yes. I am not sure whether anyone’s movements have been restricted to a given prison facility, but that merely reflects a failure of imagination and not a failure of power.
Also, executions would be much easier under the tort system because there would not need to afford so many appeals, so people could be executed more quickly. Also, we could bring back hangings, or even skin serious tortfeasors alive, because there would be no triggering of 8a by the civil, non-criminal procedures. Also, because tort defendants have no right to tort counsel, we would not have to worry about defense attorneys gumming up the works and otherwise thwarting justice.
I think the reason that all these wonderful things have not come to pass at some earlier juncture in history is because people were deluded into thinking that there was some kind of ontological category type distinction between crimes and torts. However, enlightened modern minds realize that this a a false distinction, a false dichotomy. A crime is a crime because we call it a crime and a tort is a tort because we call it a tort. If we, by official pronouncement, change the crimes to torts then they will so become torts and we, as a society, will be able to do justice more swiftly and severely than ever before. This equates to more jobs for policemen and prison guards and forfeiture lawyers, and will also thereby help grow the economy. Also, the people in prison can be used as a source of inexpensive labor so that we need fewer immigrants to pick fruit and do unskilled construction tasks. This is one of those cases where just changing a name could do so much.
February 1, 2010, 3:45 pmjccamp says:
Arthur Kirkland –
“Would support for the current seizure-and-forfeiture framework dissipate were it applied to white collar and political convicts as well as to less-polished convicts?”
As long as there is a nexus between the crime and the seized property, then who could complain? Bernie Madoff springs to mind. However, neither Scooter Libby nor Oliver North were convicted (AFAIR) of any financial irregularity. Their only place here seems to be that they were prominent member of Republican administrations who were convicted of political-based crimes. So, why are they mentioned in the post about forfeiture? Are you suggesting civil forfeiture in place of fines assessed as part of a criminal conviction? That’s double the work for the same results.
Or are you just incapable of writing anything, about any subject, without a Republican/conservative slapdown?
I do appreciate the inclusion of Representative Jefferson as the token Democrat. Good show.
Ryan -
“Like, you know, a trial before your peers.”
All of the forfeitures being discussed eventually result in a trial or a settlement.
February 1, 2010, 3:51 pmNickM says:
No, but it is routine that police enter a house or other building under a warrant, find evidence of criminal activity and valuable property associated with it, but can’t make an arrest because there’s nobody present.
Nick
February 1, 2010, 4:08 pmLindsey Abelard says:
This asset seizure business is simply reason #237 why the drug laws (Prohibition II) should be repealed.
February 1, 2010, 4:08 pmArthurKirkland says:
I wanted to list two on each side but couldn’t recall, at least not quickly, another recent Democrat with a federal conviction. It is difficult to accept Jefferson as a token Democrat — he took cold (indeed, frozen) cash as a bribe.
The point is that all were convicted of political crimes. Jefferson took money, I believe, in exchange for mishandling official duties. North was paid for government service, then used that time to work against his country, yet kept the ill-gotten gains and used them to fund his personal acquisitions. Libby, same deal. Some or all of them lied about their official misconduct. All betrayed the public trust, and took payments from the public while doing it.
Their assets seem at least as connected to criminal conduct as any wad of cash that causes a police dog to bark.
I believe I recall a conviction of North for accepting an illegal gratuity. It doesn’t get mentioned as much as his other misconduct, but I think the record reflects such a conviction. That he was pardoned on that point is especially damning of his superiors.
Finally, it seems appropriate to use Republicans examples in this context, because Republicans are the strident drug warriors whose law-and-order platform seems to create an especially troublesome blind spot concerning the unfairness of seizures and forfeitures. Democrats shame themselves by not standing up more forcefully against the drug war, but Republicans are the true believers.
February 1, 2010, 4:15 pmjccamp says:
AK –
“Democrats shame themselves by not standing up more forcefully against the drug war, but Republicans are the true believers.”
I’ll grant that the Republicans would like to be cast in the role of crime-fighters, but I don’t know that either party is exactly covered in glory when it comes to realism and the war on drugs. Aside from some truthfulness on the part of the last two Democratic presidents as to past drug use, I don’t see much aside from the fiction of medical marijuana.
North was accused of – and admitted, I think – using money to put a high-zoot security system in his house, ostensibly to protect his family from all the bad guys he was trying to assassinate. The cash came from his various trading (missiles for guns, etc) schemes, all of which were proscribed. I thought he was actually convicted of a single count of lying to Congress, however that’s entitled. But you might be correct. To the degree it is accurate, I would have absolutely no issue with seizing some equivalent (or actual) fruits of the crime. The same with Libby; if money was an instrumentality or the fruit of a crime, take it all.
Jefferson struck me as your typical buffoon-makes-good, and his party affiliation had less to do with philosophy and more about geography. But that describes a goodly number of Senators and Congressmen/persons.
Ryan –
“double the work for the same results”
I just meant there is no need for a civil trial, if a defendant has been convicted in a criminal forum and the property can be established to be his/her. If a large fine is appropriate and legal, then there is no need for a forfeiture procedure. In most cases, however, the assets are claimed by a non-defendant, if anyone claims them at all.
As for the disposition of the assets, assuming a judge or jury awards custody to the government, the rationale has been to let the criminals pay for the cost of policing and investigations. For instance, in my state, the funds go into a trust fund. The money cannot be spent on regularly budgeted items or salaries. They must go for drug education, extraordinary expenses, one-time infrastructure and the like. Typically, expenses end up in the local school system, advertised as one-time events but really recurring annual subsidies, or for big budget items like crime lab equipment. The cop who actually makes the seizure gets no benefit, receives no reward, and usually, couldn’t care less except that he/she will always enjoy seeing a criminal suffer some sanction.
There is always room for trouble when you let the elected foxes near the henhouse of forfeited cash.
February 1, 2010, 4:42 pmMatt B. says:
Perhaps this was already mentioned above, I haven’t read all the comments. As a district court law clerk, the problem I see with forfeiture abuse isn’t that innocent people are having assets seized, it’s that they aren’t getting a fair opportunity to prove whether the assets were or were not connected to the crime. At least in my state, the rules of bringing a valid petition for the return of property are FAR beyond the scope of a typical layperson, and cost of hiring an attorney would usually be more than the value of the property.
As lawyers, we take things like this for granted, but when a layperson is told to “serve notice upon the prosecuting authority,” they have no clue what to do. In practice, they typically serve the wrong party, which then waits until after the parties’ deadline passes to let them know about it, after which the correct party then moves for a dismissal. And because the caselaw requires “strict compliance” with the rules, they are out of luck.
Yeah, they could have met all these rules, but they usually don’t. I’d much rather give them the opportunity to prove it one way or another. If the government is going to take property from someone, I think the matter should be decided on the merits, not on technicalities.
February 1, 2010, 4:49 pmShelbyC says:
The portion of your comment I was addressing was
Given the fact that these were pretty much the first four hits googling “cash seizure drug dog” or something similar and the fact that I seem to read about it pretty frequently indicate to me that this is a pretty common practice. As does the Tenaha, Tx case I linked to earlier. And sure, many of these cases involve actual drug couriers. But many folks are also folks that have a few thousand on them, and are unwilling or unable to spend a few more thousand to get it back. Tell me, if you lived in say, Arizona and were driving through Virgina, and the cops took your entire stake of $5000 from you because a drug dog alerted to it, do you really think it would be worthwhile to try to get your money back?
February 1, 2010, 4:51 pmBuddy Hinton says:
First of all, we are not stupid and we know that this is not true.
Second: here is an excerpt from the article:
February 1, 2010, 4:53 pmjccamp says:
“First of all, we are not stupid and we know that this is not true.”
Well, I’m going to resist an urge, and only ask how you know that’s an untrue statement? Please be specific.
February 1, 2010, 5:02 pmjccamp says:
Shelby -
There are undoubtedly abuses. I hope that most are enthusiastic overreaching, not bad faith. Many (most?) of the anecdotal cases (of abuse) are actually people guilty as sin, with effective advocates, being reported by journalists who know there is little value in a story “Guy admits trying to buy drugs and $1,000 seized.”
But certainly there is room for improvement, maybe more in some places than others.
February 1, 2010, 5:08 pmBuddy Hinton says:
Because when people do things that make their bosses money, then the bosses become happy with that employee’s job performance. When the bosses becomes happy with an employee’s job performance, the boss will do things to make the employee’s employment situation more favorable in various ways. Policemen understand this dynamic. We know that policemen understand this dynamic and respond to it by doing whatever they feel they can get away with to make their bosses money. We know this because we are not stupid and because we didn’t just fall off the turnip truck.
February 1, 2010, 5:22 pmRowerinVa says:
No, if the cop had no probable cause. Yes, if the cop had probable cause to make the stop (that was the assumption of the original post). See my comments above — I’m not entirely sure about this, but why shouldn’t it in some situations be incumbent upon you to say “yes, I assert ownership in that” or risk forfeiture? There are some situations where this would be unreasonable but many — a mountain of cash and drugs and a gun on the table, as I hypothesized (and which is not at all hypothetical!) — in which it would not be.
Yes, really (edited to return this to the question in the comment thread). Constantly. Every day in every major city. The people may be detained and questioned, or not. The warrant may have been for the house only, or for an individual who wasn’t there, or the prosecutor concluded she couldn’t sort out the stories enough to support an indictment, or any one of a thousand factors.
And I know one response will be, “if it’s so hard to get a conviction, or you’re just not willing to devote the resources for a conviction, you shouldn’t be forfeiting property.” Sometimes true, sometimes not. In my hypothetical, where no one asserts ownership (since doing so would, in effect, be pleading guilty to a serious crime), it’s hard to see what legitimate property interest is served by preventing the forfeiture. Is that a violation of the 5th Amendment right? I don’t think so, at least not on first reading.
Also, jeepers, guys, I’m not advocating wholesale forfeiture (and Fub, thanks for the links about class actions regarding this — very good post). I’m asking questions that need to be asked, since no one is asking them from the pro-police side. My mind isn’t made up on this. What’s clear to me, though, is that the question is substantially more nuanced than the “police are totally running amok!” subtext that I detect in some posts.
February 1, 2010, 5:23 pmNI says:
The point is that lots of people have lost their property to civil forfeiture who were never convicted of anything at all, so I’m not sure why Libby’s and North’s failure to be convicted of crimes involving financial irregularities is relevant. In practice, the standard for forfeiture is that there’s probable cause that the property was within a light year of a crime. So why not clean out Scooter Libby and Oliver North? It’s happened to far less deserving people.
February 1, 2010, 5:35 pmMichael Ejercito says:
If no one asserts ownership, then the property is abandoned. No issue in the state taking it.
February 1, 2010, 5:38 pmMichael Ejercito says:
My problem with the civil forfeiture laws is that the burden of proof is on the property owner, not the state.
At a minimum, the state should be required to prove liability with a preponderance of evidence before they can have the property in question.
February 1, 2010, 5:40 pmArthurKirkland says:
I do not understand why the principle — which assumes assets derived from the ill-gotten gains of criminal conduct, leading to seizure and forfeiture — is applied to a drug suspect but not to a white collar or political convict. I do not advocate and would not easily accept seizure and forfeiture of Oliver North’s assets; I merely believe the same standard should be applied to the less-polished defendant, and that if the rule were uniformly applied many of its supporters would change their opinions.
In cases offering a better argument for relinquishment of ill-gotten gains — Rep. Jefferson’s case comes to mind — I would prefer imposition of a fine to the seizure-and-forfeiture method.
February 1, 2010, 6:24 pmArthurKirkland says:
Call it commission, or profit, or salary, or something else, but drug dealers get paid just like everyone else. They transact just like everyone else. Milk, marijuana, shoulder-fired weapons, Bibles, cocaine, administrative services, bad beer, good beer — it’s all commerce.
February 1, 2010, 8:05 pmShelbyC says:
But I don’t think the distinction between forfeiture and non-forfeiture is based on a white collar/blue collar, or polished/non-polished distinction. We don’t ask pizza-delivery guys to forfeit their salary if they get a speeding ticket, for example, or UPS drivers to give up their pay if they get a DUI.
February 1, 2010, 8:10 pmjccamp says:
Buddy
“We know that policemen understand this dynamic and respond to it by doing whatever they feel they can get away with to make their bosses money. “
NI
“In practice, the standard for forfeiture is that there’s probable cause that the property was within a light year of a crime. So why not clean out Scooter Libby and Oliver North?”
\deleted my own comments about these posts\
Arthur –
“…that if the rule were uniformly applied many of its supporters would change their opinions.”
Sad, but probably true. You should qualify “supporters” though, as in “elected officials subject to influence peddling” or some such. BTW, I believe that re: Jefferson, the only cash actually seized from him actually belonged to the Federal government. They had testimony about prior bad acts and a conspiracy, but no physical evidence, so they stung him. They’d be forfeiting their own marked cash.
I agree with Shelby and others, though. Whatever gets seized and forfeited should have a firm connection to the actual crime, not some vague ‘denial of honest service” thing or similar.
February 1, 2010, 8:34 pmHugh says:
Back in 1995 I took a job on St. Thomas and I had to figure a way to safely get $10,000 transferred down there. I was told that even a certified check or a cashiers check would take weeks to clear. I figured out a solution. I had a AAA membership which allowed me to buy an unlimited amount of travelers checks. I went to my local AAA and bought $10K worth of them. Good as cash and they probably did not have any trace amounts of illegal drugs on them.
I wonder if the authorities would try to confiscate travelers checks? Afterall, if you lose them, you can have them reissued. Would that apply if they were seized by overeager cops?
February 1, 2010, 9:40 pmGordon Langston says:
The ATF raided Cavalry Arms in Glendale AZ in Feb of 2008. Two years later there are no charges and they have not returned the seized items. Very little to even hint at what kicked this off.
Cavalry Arms continued in business and even today make weapons, everything they used to do.
After 2 years I’m fairly comfortable calling this abuse of power.
February 1, 2010, 10:10 pmskippy says:
look up ‘US vs $124,700′ to see about forfeiture without being charged for a crime.
February 1, 2010, 10:49 pmhattio says:
jccamp claims
jc, you are fond of asking others for their support for their statements, where’s the support for yours? And, no, I’ve seen it doesn’t count.
February 2, 2010, 3:02 amhattio says:
RowerinVA says;
Of course you’re not advocating wholesale forfeiture. No one ever advocates the abuse of government power. The question is, are you willing to put controls in to see it’s not abused? Because, quite frankly, you aren’t making the forfeiture decisions.
February 2, 2010, 3:08 amhattio says:
Michael ejercito asks;
The phrase is debtor’s prison. I would also note that a person can again be jailed for not paying certain debts (generally child support), so the one commenter’s points about re-naming crimes as torts are not really as far out as they seem. Criminal non-support is the re-naming of a tort as a crime, so there’s little reason it couldn’t go the other way.
February 2, 2010, 3:15 amfolly says:
Forfeiture is becoming pervasive in our society—it’s just that the average person
February 2, 2010, 8:24 amdoesn’t see it. On the front page of my local paper was a “happy” article showing a new police crime fighting helicopter (for a smallish city); within the body of the article was the quote that it was paid for the asset forfeiture funds. The average person would
just gloss over this in reading—not realizing what it meant, that property was taken from citizens to pay for this.
To see what our Federal Gov. is up to check out website “forfeiture.gov” to see the 700
to 800 pages of property the Gov. is trying to take. Those with no case reference at the top are those where no one is accused, much less convicted of a crime.
And certainly white collar and politicians are losing their funds—see William Jefferson and Scott Rothstein for example.
Further the Gov. can seize bank accounts and other property on mere probable cause, hold
it for any length of time they deem necessary through an ex parte order, then keep the
civil suit in place to forfeit the property while also naming that same property on a
criminal indictment….possibly leaving innocent owners to fight for their property
twice, once at the ancillary hearing (quiet title) at the conclusion of the criminal case and again in the civil “in rem” trial—paying attorneys all along the way. At what point do you become discouraged? NOW
jccamp says:
hattio -
Well, OK, I’ll just take the very first case in a link above. Georgia sheriffs stop a car on the interstate in a drug corridor for speeding, weaving and failing to stay in its lane. There’s a semi-auto handgun on the seat in plain view. The driver doesn’t know who owns the car (“I just call him Slim.”). There’s an odor of marijuana and a roach on the floorboards. The driver has $5,600 and change in his pockets. When asked, he didn’t know how much money he actually had. His explanation? This was the weekend receipts for his car detailing business. He says going to visit his mother, and describes her home as being 4 hours away. It’s really less than a 2 hour drive, so I guess he doesn’t know much about where Mom lives either.
Now, where I live, wax and detailing runs about $75 to $100, and takes between 2 and 4 hours. So the driver must have detailed something like 50+ cars over the weekend, assuming he worked during daylight, at about one car washed, waxed and detailed every 15 or 20 minutes or so with no breaks. Of course, if he’s at the lower end of the price scale, he did 75 cars over the weekend, with increases in the productivity.
In short, the story is laughable. Now, he didn’t need to tell the sheriffs anything. But he did, probably because he didn’t want to look guilty.
I personally don’t think this reaches the level to forfeit the cash. However, if you want to believe that this fellow would drive around in a car belonging to someone he doesn’t know, carrying (an unknown amount of) cash and a gun, lying about where the cash came from, going somewhere that he’s also lying about, but he’s completely innocent of anything, then I think you should re-examine your objectivity. There is obviously an insufficient basis for an arrest – at least for an arrest for anything but the traffic charges – but that is not the same is asserting this young man was just another citizen, going about his affairs in a law-abiding fashion. Cops gets paid to ferret out people such as this. Probably more often than not, they end up releasing them, because they can’t prove wrongdoing after an investigation. That’s what happened here.
February 2, 2010, 9:57 amShelbyC says:
IIRC the “roach” was “an untestable amount of a substance that appeard to be mj”. Stuff like this is transparent BS, like.
February 2, 2010, 11:00 amShelbyC says:
And jccamp, that’s not the first case. The first one was about the guy who was told that he’d be arrested for money laundering if he didn’t sign away his rights to the money. Acceptable?
February 2, 2010, 11:47 amBuddy Hinton says:
Here is how it works:
Policeman lies about roach means that he is telling the truth about everything else.
Perp lies about where he is headed means perp is a a drugdealer. And we know that the perp lied here in his conversation with the police officer precisely because the police officer said that he did.
This is not a double standard, but rather a bifurcated standard. Because policeman suffer terrible adverse consequences if they lie in police reports (cf, http://abclocal.go.com/wls/story?section=news/local&id=7251922 ), this means that they tell no lies, and, in this case, that means that the roach was there, but evaporated under quantum mechanical processes on the way to the testing lab. It also means the gun was not planted and was indeed in plain view. The perp did not say: “I don’t know exactly how much money is there,” but rather “I have absolutely no idea how much money is there.” The perp did not say, “my mother lives a couple of hours away,” but rather “my mother lives no less than four (4) hours away.” etc., etc., etc.
Because perps suffer no ill consequences when they lie to police, they tell lies to the police with impunity, and, if a perps tells one fib, then it inevitably means that everything he says is untrue.
This is how it has worked in criminal proceedings for a long time, and now police and forfeiture lawyers are bringing it over to the civil side. It is a rare thing in a civil case to have an unimpeachable witness going up against an adverse witness who is invariably impeached by the unimpeachable witness, but now that the civil courts have been enlisted in the noble cause of criminal justice, there have got to be some new rules.
February 2, 2010, 12:21 pmhattio says:
jccamp,
February 2, 2010, 2:30 pmYou might look up the definitions of many and most. I’ll give you a hint. One is not the definition of either. No one is claiming that everyone who loses their money is innocent. But you said many and inferred that most weren’t. That’s a pretty big burden
Econ_Scott says:
Isn’t it rather odd to attribute to “the state” some kind of Cost/benefit analysis thinking that an individual would employ over their own resources ?
Since when do state officials and employees of States Attorney or PD s care in this way about spending other peoples money unless they have news cameras in their face and an election is less than 4 months away ?
When individuals who have truly been abused can by countersuit seize the personal assets of the officials involved, thieving or just plain sloppy work in Asset Forfeiture cases,
much in the way Fiduciary liability extends to the personal assets of Trustees and Corporate Officers,
Then it “MIGHT” have the possibility of ameliorating the malfeasance of bad police and prosecutors.
Something about full employment of lawyers is appropriate here.
But something about snowballs in hell here is appropriate.
February 2, 2010, 2:34 pmEcon_Scott says:
Only pay by debit card, and always carry a ziplock bag of bacon flavored “Milkbone” dog biscuits.
February 2, 2010, 2:37 pmEcon_Scott says:
Let’s follow some thread of the logic here ….
Radly Balko “Advocates” therefore his arguments, examples and reasoning are illegitimate not to be considered ?
Radly Balko just a purveyor of Agitprop ?
But about all those people who lost real assets, without due process, and all those who experienced no knock raids, Whoops wrong address too bad they’re dead …. well it’s “For the Children and Tough on crime”
Nothing to see here …. move along folks.
February 2, 2010, 3:02 pmjccamp says:
Shelby –
“IIRC the “roach” was “an untestable amount of a substance that appeard to be mj”. Stuff like this is transparent BS, like.”
No, that was sworn testimony, unrefuted. If you have something from the case that shows the testimony is perjured, put it up. Your opinion – and mine – don’t count, only whether the sworn statements stand uncontested. Why call it a lie? Do you know something we don’t?
“that’s not the first case”
Well, the car detailer’s photo leads the story, so that’s the case I grabbed, for no particular reason. Does it matter?
hattio –
“You might look up the definitions of many and most…”
Is this your concept of a persuasive argument? You asked for some details, so I made an honest effort to answer. Your response is to insult my intelligence without addressing the issue? Guess that just demonstrates the paucity of your position…
February 2, 2010, 6:17 pmhattio says:
jccamp;
February 2, 2010, 8:24 pmI don’t know how to tell you this, but one still is not the definition of many or most. You can say all you want that I’m insulting you or whatever. You’ve made statements that can reasonably be interpreted as saying a number approaching 50% of these cases the person is guilty as sin. You’ve provided an analysis of one (1, i.e., not many or most) of these cases that, if believed, shows that one owner is not innocent. That’s still a long way from establishing that the laws aren’t routinely used in abusive ways. And, really, that’s the discussion we’re having, whether the utility of these laws as they are actually being used is greater than the damage caused by these laws as they are actually being used. The fact is you’re assumption that many, if not most, of the people being ensnared are guilty as sin, is just that, an assumption. Granted, others are making the opposite assumptions. But you were the one who started asking people for the support for their assumptions.
Buddy Hinton says:
It is self-refuting testimony. If it was really a see-able roach then it was not untestable. If it was really untestable then it was not a see-able roach.
The fact that it was not worth it to hire a good enough lawyer to exploit this tomfoolery and impeach the LEO is part of the problem.
No wonder you have never seen an impound you didn’t like. You are highly credulous in a certain biased way.
February 3, 2010, 6:20 pmTweets that mention The Volokh Conspiracy » Blog Archive » Asset Forfeiture: “A License to Steal” -- Topsy.com says:
[...] This post was mentioned on Twitter by Marc Parent, Xtapolapocetl, Duane Harris, Andrew MacKie-Mason, topsy_top20k and others. topsy_top20k said: Asset Forfeiture: “A License to Steal”: Radley Balko has an interesting article in Reason detailing the many abuse… http://bit.ly/95COkB [...]
February 4, 2010, 10:05 amThomas C Gallagher says:
These laws are a license for the strong to prey upon the weak, take their money, without adequate legal process, with a 70% commission to the same police who are supposed to be witnesses to justify (or not) the basis for the seizure. In addition, innocent owners have no protection at all. My latest blog post on the topic is: “The Moral Peril of Minnesota Asset Forfeiture Laws” http://wp.me/pAFjr-3k The Minnesota legislature has under consideration a reform Bill, that could change all this.
February 9, 2010, 11:27 pmShavonda Impson says:
First off superlative post. I am not certain if it has been spoke approximately, yet when utilizing Safari I can never obtain the integral webpage to load without refreshing various times. Could just be my modem.
June 16, 2010, 6:22 amCamila Mcmaken says:
You realized many respectable ideas on that point. I terminated a research on the publication and determined about all peoples will harmonize with your web logs.
June 22, 2010, 10:23 amKurtis Mccoggle says:
Support up the great work! You have a solid web logs
June 22, 2010, 12:43 pmRalph says:
I have a case currently in NH U.S. District Court against a local Chief of Police and Asst County Prosecutor for this very same issue. After I was acquitted of false criminal charges, I sought the return of my firearms. The Chief and Prosecutor conspired to deprive me of them. Both had motives to retaliate. The Chief was already being sued for false arrest and another matter and the prosecutor was named as one of the 7 people I was restrained from contacting in the most recent case where I was falsely charged with criminal threatening the Attorney Discipline Office and the U.S. Attorney’s Office when I criticized them for refusing to enforce my right to the anti-discrimination discrimination laws against state court officials for ordering my son enrolled in a high minority, mostly non-English speaking underperforming school in the neighboring state because of his race and color. I was given a bench trial and acquitted by directed verdict at the end of the state’s case. I argued my written expressions constituted a First Amendment Right, nonetheless, the Chief and Asst County Attorney conspired to hold onto my firearms and ammunition in absence of a court order or decision. Evidence shows the Chief was seeking to prevent me from ever possessing firearms. I have “no criminal record” and there was no state or federal prohibition to my owning or possessing firearms or ammunition once I was acquitted. The Attorney Discipline Office ruled there ws no conflict of interest on the Asst Co Attorney’s part. The problem is she did not tell the Chief what rights I retained civilly and constitutionally under the same state and federal laws she quoted to him.
July 9, 2010, 12:17 pmRalph says:
I also actually bought another firearm from a federally licensed firearms dealer while the police were still holding onto my firearms, just to demonstrate the absurdity of their claim I was not entitled to the return of my property that was neither argued or found to be evidence used or intended to be used in a crime. .
July 9, 2010, 12:22 pm