Archive | Asset Forfeiture

New Yorker Article on Asset Forfeiture Abuse

The New Yorker has an interesting article on asset forfeiture abuse, describing how law enforcement authorities routinely use it to seize property from people who have never been convicted of any crime, and often have not even been charged:

On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border….

Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over….

The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)

The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell… told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or

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Court Ruling Forces Nebraska Police to Return $1 Million Seized from a Former Exotic Dancer by Asset Forfeiture

A federal judge recently ordered the return of $1 million seized from a former exotic dancer by asset forfeiture [HT: VC reader Tom Kamenick]:

A federal judge has ruled that Nebraska cops must return over $1 million confiscated at a traffic stop from a woman who saved the money $1 at a time during her 15 year career as an exotic dancer.

The money belongs to Tara Mishra, 33, of Rancho Cucamonga, Calif., who began putting aside her earnings when she started dancing at age 18, according to an opinion U.S. District Judge Joseph Bataillon wrote last week. The money was meant to start her business and get out of the stripping business, the judge wrote.

State troopers confiscated the money in March 2012 when they pulled over Rajesh and Marina Dheri, of Montville, N.J., for speeding in Nebraska, according to court documents. The Dheris are friends of Mishra and had been given the cash so they could buy a nightclub in New Jersey. Mishra would own half of the business and the Dheris would own the other half.

Mishra had packaged the money in $10,000 bundles tied with hair bands and placed in plastic bags, and it was stashed in the trunk of the Dheri’s rented car, which the Dheris were driving to Chicago. When they were pulled over for speeding, a state trooper asked the Dheris if he could search their vehicle, which they allowed, Bataillon explained.

The state trooper found the money and after suspecting it was drug money took the Dheris into custody, according to the judge’s opinion. But police did not find any evidence of drug activity in the car and a K-9 analysis found only trace elements of illegal drugs on the cash, according to Bataillon….

“The government failed to show a substantial connection

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Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is [...]

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US Attorney Carmen Ortiz May Appeal Carswell Forfeiture Case

The Boston Herald reports that controversial US Attorney Carmen Ortiz may be planning to appeal her trial court defeat in United States v. 434 Main Street, Tewksbury, the highly abusive asset forfeiture case I blogged about on Friday:

U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.

“This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades,” Ortiz said in a statement. “We are weighing our options with respect to appeal.”

Russ Caswell, owner of Motel Caswell, told the Herald he thought the case was “bullying by the government” and felt vindicated when a judge sided with him after his court victory last week.

“It’s like they’ve got nothing better to do,” Caswell said after he heard prosecutors are considering an appeal.

To some extent, I actually hope Ortiz does appeal. Given the extreme facts of the case (which I discussed here and here), it’s likely that the First Circuit Court of Appeals will reach the same conclusion as the trial court did. And unlike a district court decision, a court of appeals decision is binding precedent that lower courts in that region of the country must follow. But I also feel for the property owners here, who have already endured a three-year legal battle over an asset forfeiture action that should never have gotten started in the first place. Even with excellent pro bono legal representation by the Institute for Justice, they have likely gone through a painful ordeal [...]

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Property Owners Prevail in Important Asset Forfeiture Case

A federal district court in Massachusetts has ruled in favor of the property owners in United States v. 434 Main Street, Tewksbury, an important asset forfeiture case. This is the case where the federal government sought the forfeiture of a motel on the grounds that a few of the motel’s customers had bought or sold illegal drugs on the premises – even though there was no evidence that the owners knew about the sales or facilitated them in any way. I previously discussed the case in this post, and it was also the focus of a Washington Post column by George Will.

Magistrate Judge Judith Dein’s opinion emphasizes the unusually extreme facts of this case as a basis for ruling that the motel was not eligible for forfeiture:

After reviewing the scores of cases cited by the parties, I find this case to be notable in several critical respects, including (1) the Government has identified only a limited number of isolated qualifying drug-related incidents spread out over the course of more than a decade, none of which involve the Motel owner or employees; and (2) the witnesses unanimously confirmed that no efforts were undertaken to work with the Motel owner to try and reduce drug crimes at the Property prior to the institution of the forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit being filed. As a result, the instant case is easily distinguishable from other cases where the “draconian” result of forfeiture was found to be appropriate.

The decision is based on statutory grounds and does not address the constitutional issues raised by takings targeting innocent property owners. Indeed, Judge Dein reiterates the longstanding, but in my view dubious, doctrine that “it is not necessary that the forfeited property [...]

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Asset Forfeiture Abuse Revisited

John Ross of Reason has a nice article summarizing the problem of asset forfeiture abuse, as exemplified by dubious practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt….

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

I previously wrote about this problem here, here, and here. In 2009, the Supreme Court heard a case addressing the question of whether forfeiture policies that give owners little or no opportunity to challenge the seizure of their property violates the Due Process Clause of the Fourteenth Amendment, which bans states from depriving people of “life, liberty, or property, without due process [...]

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Throwing Civil Liberties to the Dogs?

Radley Balko has an interesting column noting the troubling implications of some of the arguments being made in the drug-sniffing dog cases currently before the Supreme Court. He points out that these dogs’ drug alerts are often unreliable because, in many cases, dogs seek to please their handlers rather than search out the truth. Thus, they often alert when they sense that the handler wants them to do so (e.g. – if he has a hunch). This leads to a very high rate of false positives in tests:

[T]he majority of the [Supreme Court] justices assumed that the nose of a dog is infallible — that an alert from a dog indicated the presence of whatever the dog was trained to find, and nothing else. An alert, then, was enough to establish probable cause for a more thorough search by law enforcement personnel.

That assumption was wrong at the time, and it has been repeatedly proven wrong since…
Consider another study conducted by Lisa Lit, a neurologist and former dog handler at the University of California-Davis. Lit brought 18 dog/handler teams currently operating in law enforcement agencies to an empty church. Each team conducted eight searches, each lasting about five minutes. If they were accurate, none of the dog/handler teams should have alerted in any of the searches. There were no drugs or explosives anywhere in the church.

But Lit had set some traps. The handlers were told that each search could have as many as three “target scents” — drugs for the drug dog teams, or explosives for the explosive dog teams. The handlers were told that in some cases hot packages were indicated by a piece of red paper. These red paper packages were designed to trick the handlers. Lit also set a trap for the dogs: Some

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Attorney General Holder grants BATFE expanded forfeiture powers

Details here, from Americans for Forfeiture Reform. In short, BATFE becomes another federal agency which gets to seize large sums of cash, based on presumption that a large sum of cash must be related to an illegal transaction in controlled substances. And notwithstanding the fact that the Bureau of Alcohol, Tobacco, Firearms and Explosives is a Bureau whose job involves federal laws about alcohol, tobacco, firearms and explosives, not controlled substances. [...]

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The Rise of Asset Forfeiture Abuse

Co-blogger Orin Kerr describes a planned effort by one local government to raise revenue by increasing asset forfeitures through the use of drug-sniffing dogs. Unfortunately, this is just one example of a growing trend of using asset forfeiture as a fundraising tool for law enforcement agencies. In this recent post, I rounded up many sources documenting the problem, including excellent articles by Radley Balko and George Will, and this report by the Institute for Justice. Asset forfeiture laws frequently victimize property owners who haven’t even been convicted of any crime, and in some states give them little or no opportunity to challenge the forfeiture of their possession, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment, which denies government the power to take away property without “due process of law.” This column by Steven Greenhut is a good summary of the problem:

Few groups of “sinners” were singled out in biblical accounts more than “tax collectors,” who were not merely state agents collecting revenues that taxpayers rightfully owed to the government. They were the source of particular loathing because they were extortionists, who profited personally by shaking down as much money from citizens as possible…

The Gospel accounts provide an early lesson in the danger of marrying the profit motive with governmental power. The possibility for abuse is great. Yet throughout the United States, government agencies increasingly rely on “civil forfeiture” to bolster their strained budgets. The more assets these modern-day tax collectors seize, the more money they have for new equipment and other things….

If, for instance, your neighbor borrowed your green Buick and sold some marijuana to an undercover agent, the law enforcement agency can seize the car. The owner might not have done anything wrong, but the car was indeed used in

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Adventures in Asset Forfeiture

Asset forfeiture laws in many states allow the police to seize property that has supposedly been used to commit a crime, and then keep the proceeds for themselves. Often, these laws victimize people who have not been convicted of any crime, and indeed did not even know that their property might have been misused. They also often give the owner little or no opportunity to challenge the seizure, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment. Needless to say, such perverse incentives lead to many abuses, as documented in a 2010 report by the Institute for Justice.

Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.

Here is Will:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….

Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000

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Asset Forfeiture Abuse

Radley Balko reports on fairly severe asset forfeiture abuse in Wisconsin. In short, after a woman’s son was arrested, the police told her she had to pay for his bail in cash (which was untrue). Then, when she showed up with the money, most of which she had just withdrawn from ATMs, the police seized the money under the state’s asset forfeiture law because a drug-sniffing dog detected traces of drugs on the money. Even with the help of an attorney, it took four months for the woman to get her money back. It’s bad enough that this sort of abuse is constitutional. It’s even worse that Wisconsin law enforcement would act this way.

UPDATE: Speaking of asset forfeiture abuse, George Will had a column last week on another disturbing case.

SECOND UPDATE: Given Ilya’s post above, I thought I’d add a slight clarification. When I wrote that asset forfeiture is “constitutional” as currently practiced, I meant this as shorthand for “constitutional under existing Supreme Court doctrine.” Like Ilya, I am quite sympathetic to the dissenters in Bennis v. Michigan, and suspect much civil asset forfeiture would transgress a proper application of the due process clause, though I have not delved sufficiently deeply into this area to have a more fully-formed view on the limits the due process clause places on asset forfeiture. That many current practices are outrageous does not necessarily mean that they are unconstitutional. [...]

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“Opinion on Void Seizure”

Scott Johnson (PowerLine) reports on this very interesting case (United States v. $35,131.00 in United States Currency (S.D. Tex. Apr. 2, 2012)). I’m not sure whether the opinion is legally sound — this is far from my area of expertise — but I thought I’d pass it along, and I’d love to hear what others who know this area of the law have to say:

1. Introduction.

At the airport, federal officers confiscated $35,131 from a family flying to Ethiopia. They said that the couple intentionally attempted to evade the reporting requirements for taking money outside of the United States. The citizens clearly had no intention to violate the rules, and the government must return their money and pay for their attorney’s fees and costs of court.

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How the War on Drugs Creates Perverse Incentives for Police

Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:

Arresting people for assaults, beatings and robberies doesn’t bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.

“The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats,” said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.

“When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside,” Downing said.

And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look “suspicious,” frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They’re tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were

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New Institute for Justice Report on Asset Forfeiture

The Institute for Justice, a prominent libertarian public interest law firm, has an important new report detailing the many abuses of property rights in the asset forfeiture system. Here are a few of the key findings:

In most states and under federal law, law enforcement can keep some or all of the proceeds from civil forfeitures. This incentive has led to concern that civil forfeiture encourages policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities. These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government and hard for property owners to fight. For example, once law enforcement seizes property, the government must prove it was involved in criminal activity to forfeit or permanently keep it. But in nearly all states and at the federal level, the legal standard of proof the government must meet for civil forfeiture is lower than the strict standard of “beyond a reasonable doubt” required for criminal convictions…..

[I]n most places, owners bear the burden of establishing their innocence. In other words, with civil forfeiture, property owners are effectively guilty until proven innocent….

Finally, federal civil forfeiture laws encourage abuse by providing a loophole to law enforcement in states with good laws for property owners: “equitable sharing.” With equitable sharing, state law enforcement can turn over seized assets to the federal government, or they may seize them jointly with federal officers. The property is then subject to federal civil forfeiture law—not state law. Federal law provides as much as 80 percent of the proceeds to state law enforcement and stacks the deck against property owners. Thus, the equitable sharing loophole provides a way for state and local law enforcement to profit from forfeitures that they may not be able to under

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