Jay: police departments and prosecutors in many areas have a vested interest

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.

No, that was sworn testimony, unrefuted.

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.

“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…

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.

Bubba Love: 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.

Only pay by debit card, and always carry a ziplock bag of bacon flavored “Milkbone” dog biscuits.

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.

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.

IIRC the “roach” was “an untestable amount of a substance that appeard to be mj”. Stuff like this is transparent BS, like.

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.

jccamp: There’s an odor of marijuana and a roach on the floorboards.

IIRC the “roach” was “an untestable amount of a substance that appeard to be mj”. Stuff like this is transparent BS, like.

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.

Has imprisonment, nevermind execution, ever been used as a tort remedy?

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.

Also, jeepers, guys, I’m not advocating wholesale forfeiture (and Fub, thanks for the links about class actions regarding this — very good post).

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.

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.”

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.

After 2 years I’m fairly comfortable calling this abuse of power.

NI: 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.

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?

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.

ArthurKirkland: 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.

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.

The reason is because a salary — assuming that’s what we are discussing — is not typically considered an “ill-gotten gain”.

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.

That sounds suspiciously like that discussion about the deprivation of honest services clause that caused so much abuse by prosecutors and was discussed recently on this site. You might want to re-think that idea.

Also, I love the way you imply that North was applying all of his clocked hours working against his country.

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.

NI: 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.

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.

RowerinVa:
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.

If no one asserts ownership, then the property is abandoned. No issue in the state taking it.

jccamp: 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.

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.

Fub asks, “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”?”

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.

David M. Nieporent asks:
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 [can't convict] anybody merely because all five residents of the house say that the drugs aren’t theirs?

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.

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.