Topic: War on Drugs
Highway Robbery
Asset forfeiture laws have turned American law enforcement into pirates.
by RS Davis
(libertarian)
Tuesday, June 10, 2008
You know, I've said before that asset forfeiture laws turn cops into roving bands of pirates, focusing more on the booty than justice, but I never thought they'd come out and admit it. Idaho Representative William Sali reports on his webpage:
The ATF had ordered Leatherman tool kits, engraved with the words "Always Think Forfeiture." Sali learned of the issue after a constituent brought the purchase to his attention. ATF said the tools were to be used as part of its Asset Forfeiture Program, which provides training to federal, state and local law enforcement. But Sali said the "Always Think Forfeiture" motto engraved on agent tools sent the wrong message to law-abiding citizens.
"Americans have a right to keep and bear arms. We have a right to private property. But ATF, through its engraved motto, sends a message that these rights are secondary to the government’s apparent goal to 'always' seek forfeit of private property. Of course, we all want our law enforcement agencies to pursue and prosecute criminals fully. But I have a problem with a federal agency sending a message, even an unintended one, that law-abiding citizens will apparently 'always' be treated the same as criminals." said Sali.
The US Marshall Service, which oversees about $1 billion worth of property siezed from Americans, calls the forfeiture programs a "law enforcement success story."
Of course it is a law enforcement success story - they've managed to circumvent the Constitution and the Fourth Amendment rights of Americans, taking property of people never convicted of a crime. Hell, they don't even have to be charged with a crime, and 80% of the people who have their stuff stolen by government thugs aren't.
Until recently, it wass upon the person whose had their property siezed to prove at their own expense by a "preponderance of evidence" that the property was not rightfully taken, and often, it costs more to sue for your stuff back than the stuff is worth. So, these modern day pirates get to steal it free and clear.
In 1984, the US Government passed the Omnibus Crime Bill, which changed the nature of asset forfeiture to one of "in rem jurisdiction," which the group Forfieture Endangers American Rights (FEAR) says means the forfeiture action is "against the property itself instead of against its' owner." How property can be guilty of a crime, they still haven't explained fully.
Illinois Republican Henry Hyde pushed for and passed the Civil Asset Forfeiture Reform Act in 2000, which was supposed to at least shift the burden of proof away from the accused and onto the federal government, but as Radley Balko tells us it hasn't helped much:
...the courts have been steadily mitigating the 2000 bill’s impact, both by narrowly interpreting the protections it grants defendants and by being overly deferential to prosecutors when determining if they’ve met the new evidentiary standard. One provision of the law, for example, says explicitly that the government must reimburse defendants for court and attorneys fees in forfeiture cases the government loses. But Smith argued a case in 2007 in which the 3rd Circuit Court of Appeals refused to reimburse the legal fees of several defendants who were able to reclaim money seized by federal agents from a courier.
The problem is that while the burden of proving with a "preponderance of evidence" has shifted from the accused to law enforcement, the standard is still wrong. To convict you of a crime, they have to prove beyond a reasonable doubt, but to take your stuff, they just need to show that the evidence is at least 51% against you. Of course, that's only if you decide to challenge the theft of your property.
William Sali is now introducing legislation that will at least keep government agencies from blatantly focusing on the forfieture aspect, but that's not enough. At the very least, they should only be able to keep your property if they convict you of a crime. As long as we allow law enforcement to fund itself by taking other people's property without even an indictment, this piracy will continue.
Hat tip to Radly Balko.
©2008 RS Davis, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Tuesday, June 10, 2008
Last modified: Tuesday, June 10, 2008
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Reader Comments:
Posted By: David S
Date: 2008-06-10 15:11:18
You're right this is a very serious violation of the 5th amendment, which says "... nor shall any person... be deprived of life liberty or property without due process of law." Does due process mean the police say you're guilty, so you are? No, due process should mean a trial by an impartial jury as spelled out in the 6th amendment.
Posted By: Judy Osburn
Date: 2008-06-11 13:42:45
Thank you for publishing your excellent article “Highway Robbery.”
While "in rem" forfeiture proceedings have been used to enforce Customs duties and to seize enemy ships at sea since the earliest days of our nation (and have been resurrected during the American Civil War to seize property of Confederates and those who aided the Confederate army, and again during prohibition eras to seize property even from innocent owners), the most significant feature of the 1984 Omnibus Crime Bill authorizes police to keep the proceeds from the forfeiture of whatever they seize.
The ever-increasing reliance by police pirates on seizing plunder for their agencies results in a perversion of law enforcement priorities, even to the point where police routinely allow the distribution of illicit drugs so that they can seize and keep cash instead of confiscating contraband that must be destroyed.
Whereas a few years ago national forfeiture revenue totaled a little over a billion dollars per year, the United States Attorney's Office for the Southern District of New York reported $1.1 billion in forfeiture revenue for calendar year 2007 in that district alone.
The 1984 Omnibus Crime Bill also drastically increased the number of offenses that trigger forfeiture--a continuing trend whereby over 400 different types of crimes now trigger forfeiture.
You're completely right that, "at the very least, they should only be able to keep your property if they convict you of a crime."
Forfeiture Endangers American Rights (FEAR) lobbied for eight years for forfeiture reform and all we got was the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). Our ideal forfeiture reform bill passed the House of Representatives by a vote of 375 to 48, but when it got to the Senate, Congress let the Justice Department rewrite it.
One of the most important of CAFRA's reforms that, for the most part, survived the Department of Justice' rewrite provides that government is now liable for the attorneys' fees of claimants who substantially prevail in a forfeiture proceeding and who are not convicted of a crime upon which the forfeiture is based. CAFRA also allows counsel to be appointed if a claimant has a court appointed attorney in a related criminal case, or his primary residence is seized. You have to ask the court to appoint counsel – it doesn’t happen automatically.
Unfortunately these provisions providing a right to counsel for some forfeiture victims in this extremely complex area of law are rarely implemented. In the eight years since FEAR won the battle for federal legislation requiring courts to appoint counsel to certain classes of victims who cannot afford a lawyer, only a small handful—out of thousands of forfeiture cases—have received court-appointed counsel now required by law. In February 2008, the agency responsible for appointing counsel to forfeiture victims said that appointments for claimants defending their residences "are approaching one a month" -- nationwide.
Even in the rare instances where judges appoint counsel to represent owners of seized property, Criminal Justice Act panel attorneys and Federal Public Defenders often don't know how to defend civil forfeiture cases. Thus, Forfeiture Endangers American Rights (FEAR.org) has embarked upon our "Gideon Project" — to increase the availability of counsel for forfeiture victims.
Thank you publishing the truth about police piracy. The notion that property can be guilty of committing a crime, and thus forfeitable regardless of the innocence of the owner, is actually based on medieval superstition of the biblical “goring ox” of Exodus and the Old English “deodand,” whereby the object that caused a man’s death was considered tainted, and capable of exerting a magical evil influence until confiscated by church or king.
The U.S. Supreme Court still relies on the long history of the goring ox, deodands and pirate ship jurisprudence that came to treat property as if it were capable of committing an offense, and the “legal fiction” that property rather than its owner was being punished “as though it were conscious instead of inanimate and insentient.” (See, for example, Bennis v. Michigan, where the Supreme Court held in 1996 that innocence is no excuse to civil forfeiture unless the particular forfeiture statute specifically provides that owners may come forward to prove their innocence.) As the 11th Circuit stated in 2001: “Forfeiture in present law constitutes vestiges of ‘old forgotten, far-off things and battles long ago’.”
–Judy Osburn
webmaster, Forfeiture Endangers American Rights (fear.org).
Posted By: RSDavis
Date: 2008-06-11 13:46:12
Wow, thanks Judy! I think the work you do is very important. Please keep it up.
- R
Posted By: Gene
Date: 2008-10-29 15:53:14
What this new law fails to consider is that many people who were sued by both Directv and the RIAA were in fact innocent and forced to pay to settle the matter because of the exaggerated cost of litigation. I was one such person. Because someone ownes a smart card reader or ownes an ip address does not mean they did anything wrong. I was sued and directv said I never paid for service when I have the canceled checks proving I paid. They said I had no authorization to view there programming when I paid them in full for programming. They even threw in names of people I never heard of. Because to say these things when you knew they were wrong was a crime. I am the victim of these crimes but the victim witness program will not investigate these crimes. Justice will not investigate the crimes. My alternative now is to engage in Jury Nullification as a method of passive resistence. There is just nothing else I can do. I am under an agreement so my mouth stays closed. While jury nullification is repulsive, it is far worse when justice ignores a crime victim. Now comes a new law where by not only will the innocent person be ignored as a crime victim, they intend to take there home in the assit forfiture law. The problem with the Directv suits and the RIAA suits is that they are a large jump to conclusions. "You own an IP address, you must have sat behind the computer." The guy next door could have accessed your wireless network. You own a perfectly legal smart card programmer so you must have used it illegally to make an access card to steal Directv programming. "You own a corvette so you must be speeding."
Posted By: Gene
Date: 2008-10-29 15:58:47
Guess I forgot to state that the forfiture law mow extends to any copyright violation. See it here:
http://www.networkworld.com/news/2008/101408-bush-enacts-pro-ip-anti-piracy.html?fsrc=rss-duffy