Posts tagged as:

forfeiture

“And for those who had cash seized from them — one player had more than $20,000, the regular player said — the police agreed to return 60 percent of the money, and keep 40 percent. … in Virginia state courts the local police agency may keep 100 percent of what they seize.” In a Fairfax SWAT raid on unlawful private gambling nine years ago, an officer shot and killed Sal Culosi, an optometrist who “had no criminal record and no known weapons.” [Washington Post, earlier (Radley Balko: Culosi incident in 2006 "wasn’t even the first time a Virginia SWAT team had killed someone during a gambling raid")]

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Per documents released in response to a FOIA request, the federal government maintains a large program using automatic license-plate readers to track vehicles in real time (not just in later investigation) and nationwide (not just near borders). The program “collects data about vehicle movements, including time, direction and location, from high-tech cameras placed strategically on major highways.” The resulting photographs are “sometimes” clear enough to identify drivers or passengers. “One email written in 2010 said the primary purpose of the program was asset forfeiture.” Although the program is run by the Drug Enforcement Administration, its data is increasingly shared for investigations unrelated to drugs. [Wall Street Journal]

Forfeiture-driven law enforcement is at this point deeply embedded in our practice at both federal and local levels, and the small and ambiguous federal-level reforms announced by AG Holder earlier this month are unlikely to turn that around in themselves.

Conor Friedersdorf comments: “The DEA will obviously continue to lose the War on Drugs. We’ve traded our freedom to drive around without being tracked for next to nothing. … Unfortunately, leaders in the U.S. law enforcement community feel that they’re justified in secretly adopting sweeping new methods with huge civil liberties implications.” (cross-posted and expanded at Cato at Liberty). A different view: Jazz Shaw, Hot Air (could be useful in “managing crime,” and think of the children: unless we let government monitor our comings and goings, the throwers of little girls into vans will win). And more: They can watch your car, but as Waze flap confirms, don’t you dare watch theirs [Liz Sheld]

Update: new emails reveal plans of even wider scope, including a proposal (which DEA says was not acted on) to cooperate with BATF to track license plates of gun show attendees. The Guardian quotes me about the chilling effect systematic surveillance can have on the exercise of rights, and about the impetus for cooperation between Right and Left on reining in law enforcement use of data tracking. Note pp. 10, 27-28 of this NRA amicus brief in an ACLU mass-surveillance case. And earlier on license plate tracking here (Los Angeles FOIA), here and here (Maryland), and here (Radley Balko). And with the rapid development of onboard computer technology, our cars ourselves could soon be reporting our driving habits to the government. But that’d never happen, right? [Steven Greenhut] “Taxing Us To Spy On Us” [Chris Edwards]

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By one estimate, “something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder’s new policy.” [Jacob Sullum, Reason; earlier] “Eric Holder’s Asset Forfeiture Decision Won’t Stop the Widespread Abuse of Police Power” [Jonathan Blanks, New Republic] “New Holder Policy Means Fewer Bal Harbours, More Motel Caswells” [Eapen Thampy, Americans for Forfeiture Reform]

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The “equitable sharing” civil forfeiture program (see weekend post) being just one of the more visible corners of a whole scaffolding of bad incentives in law enforcement:

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Good for Eric Holder. (And yes, that may be the first time I’ve strung those first four words together in that order.) He’s throttling way back on the “equitable sharing” program that has helped turn civil asset forfeiture into a national disgrace. A shame it’s taken this long, and that he didn’t end the program entirely.

Radley Balko praises the order as “a big deal” and notes that if effective, it “will stop local police agencies from circumventing state laws aimed at reining them in.” (If state legislatures want to allow abuse, on the other hand, the order won’t stop them.) But Balko also warns that the order is ambiguous about whether the exception made for joint federal-state task forces will be permitted, as at least one close observer warns, to swallow the rule. Many law enforcement operations have at least a passing contact with the federal government’s many programs, and if that is enough to get them exempted from the new order, business as usual may continue in the seizure of property from unwitting victims (or even under certain assumptions might things worse.) More: Roger Pilon, Jacob Sullum, Institute for Justice; lawmakers’ letter earlier this month.

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Prosecution roundup

by Walter Olson on January 9, 2015

  • “Judges seemed to be troubled that prosecutors in Manhattan had secretly searched the entire Facebook accounts of about 300 people who were not charged with a crime” [New York Times]
  • Goshen, N.Y.: “Dozens of speakers thundered against the proposed asset forfeiture law at two public hearings held Monday by Orange County Executive Steve Neuhaus.” [Goshen Chronicle; Neuhaus vetoes measure] Related, forfeiture at work in Pennsylvania [AP/same]
  • Buried lede in breathless story about federal bank fines: “The agency receives a cut of up to 3 percent of its share of the total settlements for its Working Capital Fund, a slush fund common across major government agencies.” [Newsweek]
  • From amid the wreckage: Dan and Fran Keller abuse case [Austin American Statesman]
  • “Missouri’s attorney general announced lawsuits against 13 [St. Louis] suburbs on Thursday, accusing them of ignoring a law that sets limits on revenue derived from traffic fines.” [NY Times via Tabarrok]
  • “It is remarkable enough that an African-American man can be convicted by a jury for breaking into a store that video shows was burglarized by a white female.” [The Open File on Indiana prosecutorial misconduct case via Radley Balko]
  • “Lawyers for California Attorney General Kamala Harris argued releasing non-violent inmates early would harm efforts to fight California wildfires. Harris told BuzzFeed News she first heard about this when she read it in the paper.” [BuzzFeed]

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  • At least twelve Baltimore cops sought workers’ comp for stress after using deadly force on citizens [Luke Broadwater, Baltimore Sun/Carroll County Times]
  • “D.C. Council votes to overhaul asset forfeiture, give property owners new rights” [Washington Post]
  • A different view on Ferguson: Richard Epstein defends grand jury outcome [Hoover]
  • “The House GOP leadership is blocking a police militarization reform bill from even getting a vote.” [Zach Carter, HuffPo, via @radleybalko]
  • Will potential cost of citizen public records requests sink police body-camera schemes? [Seattle Times, ABA Journal]
  • Marissa Alexander case, cited by critics of mandatory minimum sentencing, ends in plea deal [Brian Doherty, earlier, CBS Sunday Morning on mandatory minimum sentencing]
  • Forensics guy hired by Michael Brown’s family: “If they want to think I’m a physician, then more power to them.” [Radley Balko]
  • St. Louis County fines/fees: “Municipal courts charge $100 for Christmas gift of fake amnesty” [St. Louis Post-Dispatch editorial]

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Prosecution roundup

by Walter Olson on November 28, 2014

  • If you like civil forfeiture, you’ll love AG nominee Loretta Lynch [Rare Liberty]
  • NYT “Room for Debate” tackles deferred prosecution agreements with contributions by James Copland, Lawrence Cunningham, others;
  • Book by Ross Cheit seeks to rehabilitate mass-child-abuse prosecutions of 1990s, Cathy Young not convinced [Reason] “When miscarriages of justice occur, prosecutors must answer for actions” [Boston Globe on Bernard Baran case, earlier here and here]
  • As Sierra Pacific case implodes, federal judge raises prospect that U.S. DoJ may have defrauded judges [Paul Mirengoff, earlier]
  • Video of panel on shaken baby syndrome doubts, relating to new film “The Syndrome” [Univ. of Missouri, K.C. School of Law, related earlier]
  • Ambiguous statutes in a regulated environment: time for a limit on the criminalization of business? [Matt Kaiser, Above the Law]
  • Las Vegas: federal judge calls “super seal” clandestine-forfeiture effort by U.S. prosecutors “constitutionally abhorrent” [Balko]

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Police highway stop forfeiture shenanigans continue in the Volunteer State, assisted by dog alerts. [Nashville News Channel 5]

P.S. Comment from @Popehat: “Proposed abbreviation: In future, will refer to ‘Highway Patrolmen’ as ‘Highwaymen.'” (& welcome Tim Cushing, TechDirt readers)

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I know I’m one of the last to catch up with this brilliant show from last month, which has had 3.8 million views, but if you still haven’t seen it, now’s your chance: it’s pricelessly funny and only too real. Cato has been inveighing against forfeiture laws for two decades or more and it’s tremendously satisfying to see the issue take off this year.

P.S. More forfeiture links: excellent Shaila Dewan piece in the New York Times the other day (“Put your valuables where I can see them!”), noting that police deciding to seize property sometimes check it against a department wish list; explosive videos from cop how-to-seize seminars and other government proceedings (“If in doubt…. take it”) tend to confirm a dark view [Nick Sibilla]; Institute for Justice report, Bad Apples or Bad Laws? Testing the Incentives of Civil Forfeiture [Bart J. Wilson and Michael Preciado, September]; “The IRS Has Been Holding This Guy’s $447,000 For 2 Years, And He’s Never Been Charged With A Crime” [Erin Fuchs, Business Insider, on Hirsch brothers case]

Cato’s Caleb Brown interviews Larry Salzman of the Institute for Justice in this podcast about the federal practice of seizing and keeping small businesses’ bank accounts when it claims to find a pattern of deposits below the $10,000 reporting threshold. Earlier here, etc.

“’How can this happen?’ [Arnolds Park, Iowa restaurant owner Carole] Hinders said in a recent interview. ‘Who takes your money before they prove that you’ve done anything wrong with it?’

The federal government does.”

For years I’ve been writing about the injustice of federal deposit-structuring law, from the South Mountain Creamery case in Maryland on up, and more recently the Institute for Justice has embraced the issue. Now that the New York Times has put a reporter on the case [Shaila Dewan, Oct. 25], the IRS says it will roll back its enforcement of the law to cases where there is other criminality — an excellent first step, although only a first step, since other federal agencies can also generate cases that result in seizures and prosecutions under structuring law.

As always, if you’re a small merchant fearful of this law, don’t go to your bank expecting helpful advice:

In May 2012, the bank branch Ms. Hinders used was acquired by Northwest Banker. JoLynn Van Steenwyk, the fraud and security manager for Northwest, said she could not discuss individual clients, but explained that the bank did not have access to past account histories after it acquired Ms. Hinders’s branch.

Banks are not permitted to advise customers that their deposit habits may be illegal or educate them about structuring unless they ask, in which case they are given a federal pamphlet, Ms. Van Steenwyk said. “We’re not allowed to tell them anything,” she said.

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Jacob Sullum traces how a gambling jackpot magically became a forfeiture jackpot (also from him, a history of how forfeiture law got so bad). The Washington Post followed up last month on its multi-part, front-page exposure of forfeiture law (Tim Lynch and Scott Shackford summarize some of its findings) with an op-ed from two former DoJ officials calling for abolition of the program they once helped run; Scott Greenfield has commentary on that as well as more generally on the costs of defense in forfeiture cases and on Nassau County, N.Y.’s resumption of the seizure of cars being driven by persons arrested for drunk driving, whether or not owned by those persons.

From today’s Washington Post: “Activists and Hill staffers meet to discuss curbs to asset-forfeiture laws”. And George Leef writes in Forbes: “Time For Civil Asset Forfeiture Laws To Meet The Same Fate As Jim Crow.”

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Canadians should be careful of carrying large sums of currency on their trips south of the border, warns the CBC’s senior Washington correspondent, Neil MacDonald, since “U.S. police are operating a co-ordinated scheme to seize as much of the public’s cash as they can. … if you’re on an American roadway with a full wallet, in the eyes of thousands of cash-hungry cops you’re a rolling ATM.”

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There’s an element of self-interest involved: when foreign states arrange to participate in the seizure of property of alleged wrongdoers even absent proof that can withstand trial, it can redound as a revenue source to U.S.-based law enforcement under various cooperation schemes. But remember the days when the U.S. sought to export the rule of law, property rights and strong constitutional protections to other lands? [Eapen Thampy, Forfeiture Reform]

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“The City of Brotherly Love can’t get enough of its citizens’ property and cash. The city is in a class by itself in the world of civil asset forfeiture, says Institute for Justice attorney Darpana Sheth” in this Cato podcast with interviewer Caleb Brown. More on IJ’s suit challenging Philadelphia’s forfeiture practices: Philadelphia Inquirer, Nick Sibilla/Forbes, Dave Weigel/Slate, and Scott Shackford/Reason.

And by way of balance on the Philadelphia story: one who defends forfeiture law as “good law” that “works” is “CNN legal analyst and consumer attorney, Brian Kabateck,” seen before in this space and elsewhere in his role as a class-action plaintiff’s attorney.

  • D.C.-area listeners: Today (Monday) I’m scheduled to join host Diane Rehm on her popular WAMU radio show, along with other panelists, tune in at 10 a.m. [update: transcript];
  • “A few people have pointed it out, but our ROE [Rules of Engagement] regarding who we could point weapons at in Afghanistan was more restrictive than cops in MO.” [@jeffclement, part of an interesting Storify on veterans’ opinions of Ferguson; related on gun-handling practice of Ferguson police last week as seen by gun aficionados [Reddit via VICE]
  • Obama should call for an end to the 1033 program, which drives local police militarization, says my Cato colleague Tim Lynch [CNN, Yahoo] Pentagon surplus grants to local police don’t correlate with terror threats (state that gets most per officer: Alabama) [WP] Missouri grant angle [David Mastio and Kelsey Rupp, USA Today]
  • SWAT raids on poker games and a comedian: John Stossel’s column this week is on Ferguson [Fox] The inimitable Mark Steyn [Steyn Online] And for balance here’s a contrary view from someone who views militarization as both inevitable and necessary [Jazz Shaw, Hot Air]
  • “What I Did After Police Killed My Son” [Politico; Michael Bell of Kenosha, Wis.]
  • Asset forfeiture, federal partnerships fed St. Louis County gear acquisition [Eapen Thampy, Forfeiture Reform] More background on forces fueling militarization [Glenn Reynolds, Popular Mechanics, 2006]
  • “The Missouri Highway Patrol, St. Louis County, and the City of Ferguson agree that public has the ‘right to record public events'” [Volokh, 2010 Cato video] “Prove the truth”: why cameras help good cops [Nick Gillespie]
  • Did feds try to pass off bogus paperwork in Maryland forfeiture case? [Van Smith, my two cents at Free State Notes, Radley Balko (and thanks for mention)]
  • “I’m not saying that warrants are completely useless.” [Ken at Popehat]
  • “Massachusetts is the only state that incarcerates people suffering from addiction who have not been convicted of crimes” [ACLU of Massachusetts]
  • “Where Would We Be If Not For Police In SWAT Gear Raiding Poker Games?” [Amy Alkon]
  • Class of federal crimes that shows the biggest racial disparity isn’t drug offenses, it’s gun offenses [Balko on Shaneen Allen case in New Jersey]
  • Our merciful laws: “I Saw a Man Get Arrested For a Sex Crime Because He Made a Scheduling Error” [Lenore Skenazy, Reason] “Sex Offender Laws Have Gone Too Far” [Matt Mellema, Chanakya Sethi, and Jane Shim, Slate]
  • Police chief seeks to arrest one of own officers on brutality charge, state’s attorney says no [Scott Greenfield; Ed Krayewski, Reason; Enfield, Ct.]

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