It starts with a sign that says “Welcome to Tenaha: A Little Town With Big Potential!” You exit a mini-mall, where you stopped for snacks for you and your two young sons. It is a bright Thursday afternoon. As you approach the city limits you hear the squawk of a siren. You glance in the rearview mirror and your heart sinks into your stomach as you see those flashing red and blue lights and a police interceptor riding your bumper. A "tall, bull-shouldered" officer comes up to your window and asks for your identification. You have no idea why you are being stopped. After several minutes, the officer walks back to your car, his right hand hovering uncomfortably near the grip of his pistol. He does not return your ID, but instructs you to follow him to the police station. You ask why and he just repeats, "Mam, I need you to follow me to the police station." He gets back behind the wheel of his cruiser and you have no choice but to follow. After all, you have your children in the car.
You enter the police station and the first thing you notice are two long tables in the corner "heaped with jewelry, DVD players, cell phones, and the like." Now that you are in the police station, the officer that stopped you, and two others surround you and officer "bull-shoulders" says, "Mam, we are placing you under arrest. Please turn around." Your jaw drops open, the officer puts a hand on your shoulder and places you in handcuffs. He then proceeds to pat you down thoroughly, running his latex gloved hands under your breasts ard around your hips and thighs in front of your children who are now screaming and crying. You manage to stammer out, "Why are you doing this?" and the officer replies, "I smelt the odor of burnt marijuana."
This cannot be. Not only do you not have any drugs in your possession. Not only did you not use drugs in your car, but you have not even smoked marijuana in the ten years since you left college. You are placed in a cell and your children are ordered to sit on a wooden bench. After an hour, in which time you are not allowed to make a phone call or talk to your children, the officer finally returns and removes you from the cell. When you are brought back into the reception area, your children run to you but they are ordered back to the bench. There on the table are your cellphone, wedding ring, and watch, that were taken from you. Also on the table is $227 in cash that you had in your pocketbook.
The officer says, "Mam, you have two choices. You can sign your property over to the city of Tenaha or you will be arrested for child endangerment, in which case you will go to jail and your children will be placed in foster care." All you want to do is get out of there, so you sign their paper, and shaking from head to toe, you gather your children and leave.
When you make it back home, you fall into your husbands arms and sob uncontrollably. When you are finally able to explain what happened, your husband flies into a rage. He grabs the phone and calls your family lawyer, who refers you to someone he knows who handles these types of cases. A few days later you meet with the attorney who listens knowingly to your story. After you finish, he shakes his head and tells you that there is very little you can do. "You needn’t be found guilty," he says, "to have your assets seized by law enforcement, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture can be claimed, regardless of its owner’s guilt or innocence." To proceed against the Tenaha police department “would be like kicking a basket of rattlesnakes.”
Couldn't happen you say. Not in America in this day and age.
Well, this is very close to what happened to Jennifer Boatright, a waitress from Lubbock, Texas, as reported by Sarah Stillman in an excellent expose, titled "Taken," that appeared in the New Yorker. Boatright, who refers to herself as a honey-blond Texas redneck, said that the report filed by Tenaha Officer Barry Wasington stated that the children could have been used as possible decoys, meant to distract the police.
In 1984, Congress passed the Comprehensive Crime Control Act. It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws. The Act was intended as a law enforcement tool to seize the assets of organized crime and drug kingpins. Property suspected of being used in the commission of a crime or purchased with the profits from criminal activities could be "taken."
Lieutenant Harry Thomas, a retired officer from the Cincinnati, Ohio police department, explains in www.policestateusa.com:
I was around in the days of yore when the first drug forfeiture programs started. If you could prove that a guy’s stuff was purchased with the proceeds of drug trafficking, you could take the stuff. It was a great idea, and it hit these guys where they lived. And for a few years the law chugged along that way.
Then law enforcement administrators started thinking about just how much plunder there really was out there. That thing about proving that the guy’s stuff came from drug proceeds was a real drag. They said, “HEY! We have a great idea. Let’s take people’s stuff WITHOUT proving that it came from drug proceeds!!” And they did. The law was changed. Law enforcement didn’t need to convict people of anything. They didn’t even have to CHARGE them with anything. They could just take the stuff!
The way it was explained to me in training was that the stuff was being treated as a separate entity, independent of its owner. In other words, the guy wasn’t being charged with a crime. His car, or his house, or his cash was being charged with a crime. Stuff could now commit crimes, and be convicted of them. A cop could hold a trial at the side of the road, convict someone’s money of drug trafficking, and then put the money in jail.
Agencies scrambled to create drug “interdiction” units to patrol their expressways, such as the I-75 corridor from Florida to Michigan which runs through my city. In my agency, our higher-ups got so addicted to stolen money that there wasn’t enough in our city to satisfy them. They cut some kind of a deal with our county sheriff and got a team of our guys commissioned as deputy sheriffs. Now they could patrol our expressways all the way to the county line, miles outside city limits.
They’re still doing it. Just last week I drove I-74 into Ohio, and sure enough, there was a Cincinnati police unit just over the state line, nowhere near the city limits, watching for anyone who meets the “profile.”
So what to do with all that dough? Buy TOYS!!!
SWAT was the latest fad. Soon agencies all over the country were buying military hardware that had never before been needed or used in civilian law enforcement (this was before Congress passed laws allowing the military to GIVE surplus hardware to the cops). Questions were raised. SWAT is a legitimate concept, and is needed in cases of barricaded persons, hostage situations, etc. But most agencies, even big ones, go for months and sometimes years without experiencing such events. The toys gathered dust. Officials and concerned taxpayers asked, “What do you NEED this stuff for?”
No need? We'll CREATE a need! And that’s why things that used to be handled in a low-key, non-confrontational way by street-savvy beat cops now require SWAT intervention, including routine service of warrants for insignificant and non-violent offenses.
“The protections our Constitution usually affords are out the window,” Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve.
The FBI website states:
To accomplish its goals, the Bureau provides training, resources, and operational assistance to field offices and entities to ensure that asset forfeiture is incorporated into as many investigations as possible.
The initial burden of proof in a judicial action is...probable cause. After seizure, the USA’s office must make an independent determination of whether the property can be forfeited. After finding the forfeiture action has merit, a verified complaint must be filed, in effect, charging the property with violating the law.
Sarah Stillman relates another case where the probable cause was "the odor of burned marijuana,” although no contraband was found in the car. “They impounded my car, and they impounded me, too,” James Morrow said, recalling the night he spent in jail. When he finally agreed to sign away his property, he was released on the side of the road with no money, no vehicle, and no phone. “I had to go to Walmart and borrow someone’s phone to call my mama.”
Ms. Stillman quotes several more cases, but this one is truly outrageous.
“I was almost numb,” Mary Adams, a sixty-eight-year-old grandmother with warm brown eyes and wavy russet hair, recalled. When I visited her this spring, she sat beside her seventy-year-old husband, who was being treated for pancreatic cancer, and was slumped with exhaustion. His wife, watched him attentively as he shuffled over on a carved-wood cane to greet me. Leon explained his attachment to their home in numerical terms. “1966,” he said. “It’s been our home since 1966.”
“I love digging in the dirt,” Mary Adams said, referring to their modest, marigold-lined front yard, and “sitting on the porch, talking to neighbors.”
Their home also proved a comfortable place to raise their only son. At thirty-one, slender and goateed, Leon, Jr., occupied a small bedroom on the second floor. When his father, who had already suffered a stroke, fell ill with cancer, he was around to help out. But, according to a report by the Philadelphia Police Department, the younger Leon, allegedly sold twenty dollars’ worth of marijuana to a confidential informant, on the porch of his parents’ home.
Leon, Sr., was in his bedroom recovering from surgery when he was startled by a loud noise. “I thought the house was blowing up,” he recalls. The police “had some sort of big, long club and four guys hit the door with it, and knocked the whole door right down.” SWAT-team officers in riot gear were raiding his home. One of the officers placed Leon, Jr., in handcuffs and said, “Apologize to your father for what you’ve done.” Leon, Jr., was taken off to jail.
The police returned about a month after the raid. Owing to the allegations against Leon, Jr., the state was now seeking to take the Adamses’ home and to sell it at auction, with the proceeds split between the district attorney’s office and the police department. All of this could occur even if Leon, Jr., was acquitted in criminal court; in fact, the process could be completed even before he stood trial.
Mary Adams was at a loss. She and her husband were accused of no crime. Instead, the civil case was titled Commonwealth of Pennsylvania v. The Real Property and Improvements Known as [their address]. For years, Mary had volunteered for the Philadelphia More Beautiful Committee, and as a block captain she always thought that civil forfeiture was reserved for crack houses and abandoned eyesores. Now her own carefully maintained residence was the target.
“I don’t even know what I’d do, being without a home in my condition,” Leon Adams said, his voice a raw whisper. “It’s scary, just even thinking about it.”
In the Colonial period, the English Crown issued “writs of assistance” that permitted customs officials to enter homes or vessels and seize whatever they deemed contraband. As the legal scholars Eric Blumenson and Eva Nilsen have noted, these writs were “among the key grievances that triggered the American Revolution.” The new nation’s Bill of Rights would expressly forbid “unreasonable searches and seizures” and promise that no one would be deprived of “life, liberty, or property, without due process.”
Regarding the situation in Tenaha, defense attorney David Guillory from nearby Nacogdoches said, "These were roadside property waivers, improvised by the district attorney, which threatened criminal charges unless drivers agreed to hand over valuables. It was a highway-piracy operation, policing for profit.”
“It’s the Guantánamo Bay of the legal system," Guillory continued. He produced a nine-page spreadsheet listing items funded by Tenaha’s roadside seizures. Among them were Halloween costumes, Doo Dah Parade decorations, “Have a Nice Day” banners, poultry-festival supplies, a popcorn machine, a thousand-dollar donation to a Baptist congregation that was important to the district attorney's reelection, and a hundred-thousand-dollar police boat, and a twenty-one-thousand-dollar drug-prevention beach party. Subsequent reports confirmed that Barry Washington, as deputy city marshal, had received a total of forty thousand dollars in bonuses from the fund, and that these bonuses had bought luxury-car rentals and first-class plane tickets to New York, New Jersey, and California.
In Detroit, an initiative targeted gay men for forfeiture, under the “annoying persons” ordinance. The practice was referred to as “Bag a Fag.” Undercover officers would arrest gay men citing “nuisance abatement,” and seize their vehicles. Many people targeted by the practice are too intimidated to talk. What stands out is how pervasive and dependent police really are on civil asset forfeiture. "It’s their bread and butter," said a representative from the A.C.L.U.
"Thanks to civil asset forfeiture laws, possessions that took you a lifetime to acquire can be taken in the blink of an eye, or, more accurately, the flash of a badge. The forfeiture laws were designed as a new government weapon in the 'war on drugs.' But they've done little more than provide law enforcement with a license to steal."
Under current law, as the A.C.L.U. representative explains, "Law enforcement agencies need only meet a low legal standard - known as probable cause - before they can seize everything, from family photos to life savings. In recent years, forfeiture laws have become a major source of funds for law enforcement agencies as the value of property seized has soared into the hundreds of millions of dollars."
Last year, the program took in nearly $4.2 billion in forfeitures, a record.
Often there’s no chance of leniency from the court, either. According to a report in ProPublica, only 30 of the 2,000 civil forfeiture cases that occurred in Philadelphia between 2008 and 2012 ended with the judge rejecting the seizure. Other times, victims who aren’t even convicted come out of the case clasping to whatever assets remain.
Even a false statement on a loan application can trigger forfeiture. Physicians are subject to forfeiture of their entire assets based on a clerical error in medicare billing. 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 - and the police confiscated his house and furniture. The government even tried to forfeit a farmer's tractor for allegedly running over an endangered rat.
"Even if you're a law-abiding citizen who's never been convicted of a crime, local police are allowed to confiscate your property and money and keep it for themselves, with the stipulation that this windfall be spent on programs likely to result in additional confiscations where the police can keep the booty for themselves," wrote Jennifer Abel in an October, 2007, article published by the Hartford Advocate.
In the Spring 2007 edition of Justice Policy Journal, Jared Shoemaker examines the negative impact on law enforcement goals and practices when police agencies aggressively pursue civil asset forfeitures as a means of supplementing their budgets, as well as how police agencies' addiction to forfeiture revenue leads to disregard for individual due process rights, sometimes with tragic and life-altering consequences for innocent individuals.
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.
Fred E. Foldvary, Senior Editor of the Progress Report says, "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."
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. 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," says the A.C.L.U.
As Chip Mellor, president and general counsel of the Institute for Justice, points out, "This money may be used for better equipment, nicer offices, newer vehicles, trips to law enforcement conventions and even police salaries. Thus, law enforcement agencies benefit in a very direct way from every dollar in assets and currency they manage to seize and forfeit. This profit motive forms the rotten core of forfeiture abuse.
"These three factors incentivize forfeiture: by making it more profitable for the agencies that engage in it; by making it easier to keep seized property; and by making it more expensive and difficult for owners to challenge the action.
"When public officials and their agencies have a direct financial stake in the outcome of their actions, courts must subject such actions to even closer scrutiny than is done now. The Supreme Court held that an impermissible bias exists when the fact finder has a financial interest in the outcome."
The Atlantic Wire comments, "Forfeiture laws have noble intentions at heart. They're meant to give police the right, pending a judge's approval, to seize money, vehicles and real estate from drug kingpins, Wall Street con men, or mobsters. Bad people should not be able to keep the good things they buy with bad money. But more and more cases are popping up where civil law is used to seize assets in cases where no criminal charges are laid, and often against citizens who may not have enough money to properly defend themselves in court."
On June 11, 1997, Nadine Strossen, President of the American Civil Liberties Union, testified before the Committee on the Judiciary Of The United States House of Representatives, on The Civil Asset Forfeiture Reform Act:
Civil forfeiture as a whole stands outside the doctrines of due process and criminal procedure. Despite the widespread use and well documented misuse of civil forfeiture, it is an arcane legal doctrine which exists merely because of its historical foundation and its fiscal advantage to law enforcement agencies. While promoted as a civil cause of action, its ramifications are more akin to the harsh punitive aspects associated with the criminal system -- without any of the important fundamental constitutional due process protections for civil rights and liberties. This leaves many citizens unprotected from law enforcement's overzealous and unencumbered use of these laws. The time is long overdue to reform the unfair civil asset forfeiture system.
The Cato Institute published a report by the Institute for Justice, “Policing for Profit: The Abuse of Civil Asset Forfeiture.” Most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking the neutral administration of justice. The report graded each state and the federal government on its forfeiture laws and other measures of abuse. The results are appalling: Six states earned an F and 29 states and the federal government received a grade of D.
As the economy collapses, the police have become revenue generators.
“We all know the way things are right now, budgets are tight,” Steve Westbrook, the executive director of the Sheriffs’ Association of Texas, says.
Harry Thomas concludes, "Life is GOOD for law enforcement agencies! The only difference between them and pirates is the absence of an ocean. Highway robbery is back in vogue, literally!"
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