Nice job by L.E.
This is a discussion on Sheriff's New Ride! within the Law Enforcement, Military & Homeland Security Discussion forums, part of the Related Topics category; Civil Asset Forfeiture Editorial Civil Asset Forfeiture by Fred E. Foldvary, Senior Editor When criminals are caught, they are considered innocent until proven guilty, and ...
Civil Asset ForfeitureThis is the danger of these laws. Can you prove that your money was not used in a drug transaction? My neighbor lost $67,000 when it was found in his van during a traffic stop. No drugs were found and he was not charged with a crime. The money however was taken and as the neighbor could not prove it wasn't drug money he could not get it back.
Civil Asset Forfeiture
by Fred E. Foldvary, Senior Editor
When criminals are caught, they are considered innocent until proven guilty, and they are entitled to Constitutional rights of due process. But some acts and possessions are considered to be civil cases by the government, without the legal protections that murderers, thieves, and rapists have.
Civil asset forfeiture means the confiscation of property by the government when it considers it a civil rather than a criminal case. Seizure occurs when the government takes property. Forfeiture means the legal title is transferred to the government. The perpetrator is the property rather than the person. In normal civil cases, one person sues another person for something the other did, such as not fulfil a contract. But when the government uses civil forfeiture, there is no contract violation. The government also does not need to prove guilt. There is only some property which is considered to be an offense or associated with an offense, and the government just seizes it. Sometimes the police just keep it; usually, they sell it and keep the money.
Civil forfeiture is usually used for drug-law enforcement, but increasingly it is used for other laws, such as prostitution, shoplifting, or even legal activities. The government only has to suspect that the property is being used in connection with some activity that is either illegal or claimed to be illegal. The government sues the property, not the owner, and it is then up to the former owner to prove that the property was not used illegally. The former owner has to pay a nonrefundable bond of 10 percent of the value of the property and pay attorney fees that can amount to up to $100,000. And if the government thinks the money you use to pay your lawyer is also tainted, it can seize that too, so it becomes impossible to hire a lawyer.
The property seized can be cash, cars, real estate, or a business. Often, the owner was not aware that a tenant or one's child or even a stranger was using drugs in one's property. Sometimes, just having the property, such as a large amount of cash, is sufficient to have it seized. Cash is especially vulnerable, since most paper money has traces of cocaine or other drugs.
The ability to confiscate property without having to prove guilt creates a perverse incentive for the police to seize property, since they get to keep it. If they break into a house and the owner, thinking the intruders are thieves, takes hold of a gun to defend himself, the police can then shoot the resident. In Ventura County, California, a homeowner was killed this way, and no drugs were found in his property. The police can get away with this because 80 percent of the seizure victims are never charged with a crime, and the seizure victims do not have the constitutional protection that criminal defendants have.
Here are some examples of how civil asset forfeiture works. The police stopped a woman at Houston's Hobby Airport because a police dog had scratched at her luggage. They found no drugs, but did find $39,000 in cash. The police took and kept the money, even though she could prove she had the cash legitimately. In some black slum neighborhoods, the police frequently stop people and confiscate their cash. In Detroit, a grocery store was raided and all the cash was confiscated, even though the police found no drugs, because the police dogs reacted to some of the cash. In New Jersey, a man was accused of practicing psychiatry without a license because he was counselling people in his mother's home; even though counselling does not require a license, the police confiscated the house and furniture.
Federal and State agencies seizing assets include the FBI, IRS, FDA, highway patrols, and police. Civil forfeiture is being expanded by all levels of government into ever new activities. It can be a powerful weapon by government to stifle dissent. People become afraid to protest or change the laws, because the government will come after everything they own. Ultimately, the police and other government agencies could become self-supporting from confiscation and will not need tax revenues. The press will be afraid to criticize or even publicize this, because they too would become targets. We would then not be able to tell the difference between the police and organized crime.
We need a Constitutional provision prohibiting civil asset forfeiture by all levels of government. Government should only be able to confiscate property if someone is convicted of a crime. Any action by government against an individual and his property should be a criminal, not civil, case. We need these reforms soon, before America becomes a police and terrorist state.
I believe that this was drug money, but if he couldn't prove his property was not involved in an illegal activity could anyone? The last gunshow I went to I carried a few thousand dollars cash with me for
the purpose of making a buy. Had I been stopped for a traffic violation I would have been in the same predicament as my neighbor
Nice job by L.E.
Les Baer 45
N.R.A. Patron Life Member
1. If they arrest anyone, they have to call in a cruiser because they can't carry anyone in the back seat. (two doors)Ohio State Highay Patrol had a couple Red Iroc Z camaros that they confiscated and outfitted for Patrol.
2. If you like this idea, don't drive a muscle car. They may find a reason to "confiscate" yours.
Oklahoma County Sherriff's new Camaros - Camaro Forum - 2010 Camaro 2011 Camaro / Camaro Z28 SS Forums - Camaro5.com
Check out our county sheriff's 2010 Camaros
"You cannot invade mainland United States. There would be a rifle behind each blade of grass." - Admiral Yamamoto
Those who support these laws point to "safeguards" but what safeguards are there really when you can't get your own property back for months or years, if ever, even when no charges are brought? And when you do get it back, it has been damaged or the moment has passed when you could use it? When someone has their legal firearm taken, even if momentarily during a stop, the members here generally don't approve. Why should other property be treated differently? The practice of asset forfeiture has the potential to, and often does, violate due process, in addition to the inherent conflicts of interest it creates. Here is another article providing further food for thought (I don't know this site one way or the other):
The crazy perversities of civil asset forfeiture. - By Radley Balko - Slate Magazine
The law, lawyers, and the court.
Take the Money and Run
The crazy perversities of civil asset forfeiture.
By Radley Balko
Posted Thursday, Feb. 4, 2010, at 5:09 PM ET
Last month, the Supreme Court tossed out the case Alvarez v. Smith, a challenge to a portion of the asset forfeiture in Illinois that allows the government to keep seized property for up to six months before giving its owner a day in court. The Court declined to rule on the case after determining it to be moot—all of the parties had settled with the government by the time the case made it to Washington.
That's too bad, because the Illinois law should be struck down, and also because the country could benefit from a discussion about the continuing injustice of many states' civil asset forfeiture laws.
Civil asset forfeiture, an outgrowith of the drug war, rests on the legal theory that property can be guilty of a crime. Once authorities establish a nexus between a piece of property and criminal activity—most commonly drug cases, but also prostitution, DWI, and white collar crime—the owner must prove his innocence or lose his property, even if he's never charged with an underlying crime. In most jurisdictions, seized cash and the proceeds from the auctioned property go back to the police departments and prosecutors' offices responsible for the seizure. The scheme, which creates unsavory incentives for public officials, became popular because of a 1984 federal bill designed to encourage aggressive enforcement.
After a number of outrageous forfeiture cases made national headlines, Congress reformed federal civil forfeiture law in 2000. But egregious abuses are still common at the state level. The Indiana case of Anthony Smelley illustrates just how perverse forfeiture proceedings can get.
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Early on a morning in January 2009, Smelley, who is 22, was pulled over while driving along I-70 in Putnam County, Indiana. Months earlier, he'd been in a car accident and won a $50,000 settlement. He states in court documents that he had taken around $17,500 with him that January day en route from his home in Detroit to St. Louis, to buy a new car for his aunt.
Smelley was pulled over for making an unsafe lane change and driving with an obscured license plate. He was also driving with an expired driver's license. His traffic stop should have ended with citations for those infractions. Instead, the police officer asked Smelley to get out of the car and patted him down, finding the cash. The officer then called in a K-9 unit for a sniff search of Smelley's car for drugs. The dog alerted twice. Smelley and two passengers were arrested, and the police seized Smelley's money.
A subsequent hand search of Smelley's car turned up no illicit drugs, and no criminal charges were ever filed against Smelley or his passengers. Smelley produced a letter from a Detroit law firm confirming he had been awarded the $50,000 from the accident. That didn't matter. Putnam County has since held Smelley's money for more than a year.
When I started looking into Smelley's case as part of a feature story for Reason magazine, I noticed that the attorney representing Putnam County, Christopher Gambill, wasn't Putnam County prosecutor Timothy Bookwalter or anyone who works for him. Gambill is a private attorney. He told me by phone that he handles civil forfeiture cases for several Indiana counties on a contractual basis and, incredibly, pockets a third to a quarter of what he wins in court.
Allowing police departments to benefit from forfeiture proceeds is bad enough. It creates perverse incentives for cops to err on the side of taking property and can lead to mass civil rights violations like those exposed last year in Tenaha, Texas. And forfeiture critics argue that allowing public prosecutors' offices to benefit is even worse, and likely a violation of due process. It's the prosecutors who decide what cases the state will bring in court—their offices shouldn't materially benefit from those policy decisions.
But allowing unelected private attorneys to oversee a county's forfeiture proceedings on a contingency basis is the worst option yet. These private attorneys, unaccountable to the public, are making decisions about which cases to go after that directly affect their own personal wealth. Steven Kessler, a New York attorney and author of a treatise on state forfeiture laws, says he's never heard of anything like it. "This is scandalous," Kessler told me in a phone interview. "It's blatantly unconstitutional."
It isn't clear just how widespread the practice is in Indiana. The office of Indiana Attorney General Greg Zoeller and the Indiana Prosecuting Attorneys Council didn't return my calls for comment. But according to Mark Rutherford, chairman of the Indiana Public Defender Commission, it goes well beyond the four counties that work with Gambill. "It's just sort of accepted here that this is the way things are," Rutherford says. "There are attorneys who have amassed fortunes off of these cases."
Smelley's case also demonstrates the zeal an unelected attorney might display to win his fee. At a summary judgment hearing last February, Putnam County Circuit Court Judge Matthew Headley asked Gambill how he planned to tie Smelley's seized money to drug crimes, given the letter Smelley produced about his accident settlement. Gambill responded that while he couldn't show that Smelley had obtained the money illegally, he planned to show that the money "was being transported for the purpose of being used to be involved in a drug transaction." In other words, Gambill wanted to take Smelley's money because of a crime Smelley hadn't yet committed. When I asked Gambill to clarify, he replied, "We can seize money if we can show that it was intended for use in a drug transaction at a later date." As Kessler put it, this is "like something out of that movie Minority Report."
Smelley's case then got even stranger. At the preliminary hearing last February, Judge Headley actually ruled in Smelley's favor. But under state law, Putnam County had an additional 10 days to amend its brief. Three days after his ruling, Headley mysteriously pulled himself from the case. Gambill thinks he knows why. "Several months ago, [the judge] asked the Putnam County prosecutor if he could have $5,000 from the forfeiture fund to buy some new AV equipment for his courtroom. He was turned down," Gambill said. "Since then Judge Headley has had, well, I'll just say he's had a much different demeanor in forfeiture cases." Gambill thinks that in his eagerness to question the county, Headley misstated state law during Smelley's preliminary hearing, then took himself off the case once he realized his mistake.
Headley confirmed to me that he had made the AV equipment request. But he denied that the denial of his request for forfeiture funds had any bearing on his ruling. Maybe that's true, and Gambill is wrong. But think about the impropriety of it all: A judge asked for $5,000 to upgrade his courtroom from a fund filled with money from defendants over whose cases he presides.
Indiana's state constitution requires that forfeiture proceeds go to the public schools. So under the spirit of the law, there shouldn't even be a forfeiture fund for a judge to request money from. And yet as this case reflects, there are ways around the requirement. One tactic is to get a defendant to settle by handing over an amount of money somewhat less than it would cost him to fight the case. Because this isn't actually a court-ordered forfeiture, the money can go to the police department instead of the schools fund. In another scheme, called "adoption," state law enforcement agencies call in the feds on a forfeiture case. The case then is governed by federal law—which allows for up to 80 percent of the money to go back to local law enforcement after the federal government takes it cut, effectively circumventing state legislators.
The 2000 reforms to the federal civil forfeiture laws didn't address this problem. Many state laws are still a mess, too. In the end, the abuses in Indiana, Texas, and elsewhere really aren't surprising. When you incentivize corruption, it isn't exactly shocking to later learn that your public officials have been corrupted. As for Anthony Smelley, he finally had his new hearing last Friday. But it could be another month or more to hear whether he'll get his money back.
That should read "Car taken from Drug Dealer"
A lack of preparation on your part does not and will not constitute an emergency on mine.
E.A.A. Windicator 2" .357/.38 revolver
CHP carrier since Oct. 15, 2009
Are we suggesting that potential abuse should stop a practice permitted by law? Am I the only one who finds that amusing and ironic in equal measure?
Seriously though - good for them. They could confiscate the vehicle, auction it, get pennies on the dollar for it, then buy a new vehicle for the department... or, they could just use the confiscated vehicle and save the community money.