Posts Tagged ‘forfeiture’

“We don’t have to prove that the person is guilty…. It’s that the money is presumed to be guilty.”

Joline Gutierrez Krueger at the Albuquerque Journal with the tale of the $16,000 in cash that “Joseph Rivers said he had saved and relatives had given him to launch his dream in Hollywood … seized during his trip out West not by thieves but by Drug Enforcement Administration agents during a stop at the Amtrak train station in Albuquerque. An incident some might argue is still theft, just with the government’s blessing.” The government hasn’t charged Rivers with anything and, under the rules of civil asset forfeiture, doesn’t have to:

“We don’t have to prove that the person is guilty,” [Albuquerque DEA agent Sean] Waite said. “It’s that the money is presumed to be guilty.”

Meanwhile, despite the U.S. Department of Justice’s promise to stop seizing bank accounts in future in cases where violations of laws against bank deposit “structuring” (keeping them under the $10,000 reporting threshold) are not connected with any underlying crime, it continues to hold on to money already in the seizure pipeline. That includes the $107,000 grabbed from Lyndon McLellan, who runs L&M Convenience Mart in rural North Carolina, according to the New York Times. “You work for something for 13, 14 years, and they take it in 13, 14 minutes.” More about the case from Jacob Sullum and Adam Bates.

A prosecutor wrote menacingly to McLellan’s lawyer about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

The Institute for Justice, which stood up for McLellan, has done a video:

In other forfeiture news, the Senate Judiciary Committee held a hearing on the dangers of forfeiture laws (there to defend the laws: Fraternal Order of Police national president Chuck Canterbury, seen in this space just a few days ago defending police officers “bill of rights” laws) And the Maryland legislature has sent a forfeiture reform bill to the desk of Gov. Larry Hogan [Maryland Reporter]

Police and community roundup

  • Lucrative: Los Angeles writes $197 tickets for entering a crosswalk with “Don’t Walk” blinking [L.A. Times, more]
  • Forfeiture reform bill in Tennessee legislature stalls after “a key committee heard from family members who are in law enforcement and who do not want to give up a source of income.” [WTVF (auto-plays ad) via Balko]
  • As protagonists got deeper into trouble, they kept making bad decisions: Heather Mac Donald has a dissenting take on Alice Goffman’s much-noted book “On the Run” [City Journal, more favorable Tyler Cowen review previously linked]
  • In Georgia: “Probation Firm Holds Poor For ‘Ransom,’ Suit Charges” [NBC News, Thomasville, Ga., Times-Enterprise]
  • Police and fire jobs are dangerous by ordinary measure but involve less risk of fatality on job than trucker (2-3x risk), construction, taxi, groundskeeper, sanitation [New York Times]
  • Police think tank finds St. Louis County ticketing culture “dysfunctional and unsustainable” [Ryan J. Reilly, HuffPo] John Oliver on snowballing effect of petty municipal fines and fees [YouTube] NYC is writing fewer summonses for teenagers these days [Brian Doherty]
  • “Subtle hand movements,” whispering, being nervous, changes in breathing: list of six “invisible” signs someone is resisting an officer [Grant Stern, Photography Is Not a Crime response to Joel Shults, PoliceOne]

Finally, reform of structuring forfeiture — and the farm story that helped

This is welcome news from the U.S. Department of Justice, and rather than try to rewrite I’ll just quote at length what my Cato colleague Adam Bates wrote:

[On March 31] Attorney General Eric Holder issued new guidelines to federal prosecutors tightening the rules for seizing assets for so-called “structuring” offenses.

Under the Bank Secrecy Act, structuring occurs when someone is suspected of arranging their financial transactions as to avoid triggering a report to the federal government by the financial institution. Some of civil asset forfeiture’s most egregious abuses are the result of federal prosecutors utilizing this nebulous statute to empty the bank accounts of unwitting citizens and small businesses who are never charged with any crime or even aware that their transactions are considered illegal.

The new rules require:

1. That structuring seizures against people for whom there is no criminal charge be based upon probable cause that the funds were either generated by unlawful activity or intended for use in anticipated unlawful activity. Alternatively, prosecutors must procure a warrant from a court and with the approval of either the U.S. Attorney (for Assistant U.S. Attorneys) or the Chief of the Asset Forfeiture and Money Laundering Section (AFMLS) (for Criminal Division trial attorneys).

2. That when the prosecutor determines subsequent to a structuring seizure that the government lacks the necessary evidence to succeed at either a civil or criminal trial, the seizing agency must return the full amount.

3. That when a prosecutor seizes property pursuant to suspicion of structuring, the prosecutor must file either a criminal indictment or a civil complaint, or receive an exception from either a U.S. Attorney or Chief of AFMLS within 150 days or else return the seized assets.

4. That all settlements must be complete and in writing. Informal settlements are expressly prohibited.

Here’s the Justice Department memo, and Kent Hoover at the Business Journal chain has more coverage.

I’ve been writing about the outrages of these structuring cases for years, especially the feds’ ambush of Randy and Karen Sowers’s successful Middletown, Md. dairy farm and ice cream maker, South Mountain Creamery. In yesterday’s Washington Post, Rachel Weiner tells how the Sowers’ story “gave civil forfeiture reformers a powerful symbol”, especially after the Institute for Justice got involved. I’m quoted:

“The South Mountain case happened to be one of these that captured the imagination,” said Walter Olson, a blogger for the libertarian Cato Institute who has written about the Sowers case. “Once you’ve bought ice cream for your kids from one of their little trucks, the name sticks in your memory.”

Prosecution roundup

  • Florida court blocks drug-related seizure of house as violation of Constitution’s Excessive Fines Clause [Orlando Weekly, opinion in Agresta v. Maitland]
  • Deferred- and non-prosecution agreements (DPAs/NPAs) have ushered in a little-scrutinized “shadow regulatory state” [Jim Copland and Isaac Gorodetski, “Without Law or Limits: The Continued Growth of the Shadow Regulatory State,” Manhattan Institute report]
  • Politicized prosecution: New York Attorney General Eric Schneiderman throws book at bankers for not lending in Buffalo [Conrad Black via Tim Lynch, Cato]
  • Would it improve prosecutors’ incentives if localities rather than state governments paid for incarceration? [Leon Neyfakh, Slate, via David Henderson]
  • Andrew Pincus on the growing danger of enforcement slush funds [U.S. Chamber, more]
  • “The Department of Justice, if it succeeds on its new theory, may have criminalized many instances of dull employee misconduct.” [Matt Kaiser, Above the Law; Peter Henning, N.Y. Times “DealBook”]
  • A Brooklyn mess: new D.A. looking into 70 convictions obtained with evidence from retired detective Louis Scarcella [Radley Balko]

New Mexico abolishes civil asset forfeiture

Significant news: New Mexico “Gov. Susana Martinez (R) has signed [into law] HB 560 … effectively abolish[ing] civil asset forfeiture by requiring a criminal conviction before the government can seize property.” [Adam Bates/Cato; Scott Shackford, Reason and more]

Late this afternoon (Monday) I’ll be speaking to an invitation-only group in Annapolis on what state lawmakers should know about the gathering momentum for civil forfeiture reform. If you’re in or near Maryland’s capital city and interested in learning more, contact me.

Law enforcement for profit roundup

  • Missouri law incentivizes local ticket-writing, Illinois not so much. Guess how municipalities respond? [Jesse Walker] “Ferguson’s Court Fine Scandal Arose Because Of Its Bloated Government” [Scott Beyer; earlier on fines and fees in Ferguson here, here, here, here, here, here, here, etc.] “Nassau’s top cop orders retraining of officers who write fewest tickets” [Newsday via @GoLongIsland]
  • Maryland House passes forfeiture reform 81-54, with nearly all GOPers voting against the property rights side [my Free State Notes post, Maryland Reporter and more (Baltimore County Del. and former police officer John Cluster “said he hadn’t seen a single case of abuse in his time”), Jason Boisvert]
  • “Quiet change expands ATF power to seize property” [Adam Bates, Cato]
  • Meanwhile on the civil side, hedge funds place heavy bets on litigation finance [Paul Barrett, Business Week]
  • In news that will surprise few libertarians, debt collection on behalf of government agencies is fraught with problems [CNN project overview links to individual stories]
  • Among its numerous other problems, pending “human trafficking” bill would establish a fund to cycle fines back to law enforcement and victim advocates [Elizabeth Nolan Brown, Reason]
  • Investigation into forfeiture in Indiana [Indianapolis Star]

February 19 roundup

  • Sheldon Silver’s law firm reportedly loses its special status in courts [New York Post] “Ex-congresswoman could get payout from court tied to Silver” [same; former Rep. Carolyn McCarthy]
  • “High School Teacher With Fear of Young Children Loses Disability-Bias Case” [EdWeek, h/t @aaronworthing]
  • “Worth remembering that, if they had the power in the 1980s, the public health lobby would have forced us to eat a diet they now say is bad.” [Christopher Snowdon, earlier]
  • Numbers confirm that AG Eric Holder’s forfeiture reform won’t directly affect great majority of cases [Institute for Justice via Jacob Sullum, earlier]
  • Despite curiously thin evidence that they work, bans on texting while driving roll on, including Mississippi [Steve Wilson, Watchdog, thanks for quote, earlier here, etc.] Draft Ohio bill has numerous troubling features, including broad bar on future technologies, vague distraction ban, stiffer penalties without judicial discretion, mandatory court dates for minor offenses [Maggie Thurber, Ohio Watchdog, thanks for quote]
  • Cop’s defense in sex assault of teen: he “[had] money problems and a bad guy scared [him]” [Trumbull, Ct.; Scott Greenfield, Connecticut Post]
  • “Dance like no one is watching; email like it may one day be read aloud in a deposition.” [Olivia Nuzzi]

This is your Fairfax County Police Department on 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”)]

“U.S. Spies on Millions of Cars”

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]

Holder’s order on forfeiture reform: less than meets the eye

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] More: Balko, continued.