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untanglingwebs
El Supremo
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Police Can Seize Your Property With Little Reason; Opens Door to Corruption, Say Experts
Congressman Timothy Walberg and Sen. Rand Paul introduce bills to reform federal asset civil forfeiture laws
By Gary Feuerberg, Epoch Times | August 9, 2014
Last Updated: August 9, 2014 8:14 am
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WASHINGTON—Under civil asset forfeiture laws in the United States, police can seize your property if they can connect it, even remotely to criminal activity, with drug crime being the most common. Even if you were completely unaware of the crime, your property may be taken.
Radley Balko, a blogger and reporter for the Washington Post, has brought to the public’s attention many people whom he regards as innocent victims of civil forfeiture abuse.
On July 28th, U.S. Congressman Timothy Walberg (R-Mich.) introduced a bill aimed at reforming federal asset civil forfeiture laws. Also, last month on the Senate side, Sen. Rand Paul (R-Ky.) introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which similarly seeks to reform the way the government seizes property suspected of being involved in criminal activity.
“When you tell [people], in America, the government can take you home, your car, your boat, without convicting or even charging you with a crime, most people cannot even believe it,” said Scott Bullock, senior attorney, who directs the Institute for Justice’s campaign against civil forfeiture. He spoke July 29, at the Heritage Foundation in Washington, D.C., on the topic, “Arresting Your Cash: How Civil Forfeiture Turns Police Into Profiteers.”
For people to get their property back once it’s been confiscated, they usually must go to court and show they legitimately earned the property. “So if it’s your cash that’s been seized, you have to find the paycheck or paystub,” Balko explained.
Sometimes the property itself is alleged to have been used in the commission of a crime, like an automobile seized for its use in a drug deal. You would have to prove that you didn’t drive the car—the so-called “innocent owner defense”—but even that may not be enough to get your property back, according Balko.
Punishing the Property
A woman’s car was subject to forfeiture and seized by police because her husband used it in the services of a prostitute, without her knowledge or consent. The U.S. Supreme Court ruled 5-4 in Bennis v. Michigan (1996) that in civil forfeiture cases, the state of Michigan was not required to provide an innocent owner’s defense, and she lost her car and was not entitled to compensation, although no one said she did anything wrong.
However, most federal and state forfeiture laws provide for an innocent owner defense, according to attorney Steven Kessler, who has written about and defended many cases regarding civil and criminal forfeiture. Nevertheless, Kessler thought the Bennis case set a bad precedent by the high court that regarded “Forfeiture had nothing to do with the owner’s culpability. The property was the offending party and, consequently, the property, not its owner, was being punished.”
The proponents of reform argue that current standards for seizing property make it too easy and tempting for government prosecutors and police to abuse their powers and cite many examples of unfair application of the law. The Fifth Amendment asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” The 14th Amendment has nearly identical wording.Those who want the laws reformed say that police and prosecutors are abusing their civil property forfeiture powers with impunity. The legal environment for forfeiture cases is decidedly on the side of law enforcement and prosecutors, they say. In only six states does the government have the burden to establish that the person is guilty in order to confiscate all types of property, according to the Institute for Justice. In 38 states, the burden for all forfeitures, including one’s home, is on the owner.
‘Highway Robbery’
In 2005, Matt Lee was driving from Michigan to the West Coast to begin a new life. His father had given him $2,500 in cash on the day he left to help him get started, as he recounted in the Silver Pinyon Journal. He kept $100 on him to add to his money for trip expenses, and put the remaining $2,400 in the trunk so he wouldn’t be tempted to use it on the way. Lee was driving on I-80 through Humboldt County, Nev., when he was pulled over by a deputy sheriff. The sheriff asked him how much money he was carrying, which was really none of his business, but Lee, who had nothing to hide told him how much and where it was. The sheriff took the money out from the trunk, and said he suspected Lee was intending to use the money to buy narcotics in California. He said he was keeping the money but Lee could continue on. Lee was not arrested. In the middle of a desert, Lee had no alternative but to drive on to California.
Three years later, Lee finally got his money returned because of a lawsuit filed against the county by another person who had also been fleeced. The latter’s attorney wouldn’t settle unless Lee also got his money back.
“In 2012, an astounding $657 million was paid out to state and local law enforcement for handling forfeiture cases,” said Andrew Kloster of the Heritage Foundation, who played host at the forum.
Congressman Walberg gave several instances of the questionable use of moneys collected from civil asset forfeiture:
“In Fulton County, Ga., football tickets for the district attorney’s office; in Webb County, Texas, $20,000 for TV commercials for the district attorney’s re-election campaign; in Kimble County, Texas, $14,000 for a training seminar in Hawaii for the staff of the district attorney’s office; in Albany, N.Y., over $16,000 for food, gifts, and entertainment for the police department.”
‘Perverse Incentives’
The proponents of reform say that the problem with asset forfeiture is the incentives it sets up for the police and/or prosecutors.
At the forum, Balko gave an example of narcotics task forces monitoring the East-West Interstate highway through Nashville, Tenn., which serves as a kind of drug corridor. Investigative reporters from the local television station discovered that police were pulling over suspected drug couriers at a 3 to 1 ratio as they were leaving Nashville compared to coming into Nashville. The reason is, said Balko: “A car full of drugs coming into a city is of no use to the task force in terms of generating revenue for them; a car leaving a city is much more likely to be full of cash than drugs. They were setting up their traps … on the west side of the city not on the east side where the drugs would be coming in.”
“Even if you support the drug war, forfeiture sets up some really perverse incentives for police officers to wait until the drugs are sold before they make their bust,” Balko said.
[color=blue]Balko said the instances of perverse incentives from the forfeiture law are well illustrated in Kansas and Indiana, as these states allow district attorneys to contract out to private law firms to handle civil and criminal property forfeiture cases. In Indiana, there were firms making millions of dollars off of these cases, and it’s still going on, Balko said.
In Kansas, Balko discussed one case that he felt illustrated an egregious conflict of interest. In a sparsely rural county, the position of district attorney (DA) is part-time. The DA also had a private law practice, and he contracted out forfeiture cases to his own practice. He got a cut whenever a case went to court. “He then proceeded to prosecute on the criminal side and civil side of these cases.”
Balko said he wasn’t accusing the individual of wrongdoing, but only pointing out the existence of a strong incentive for the DA to cut a deal on the criminal side in exchange for the accused giving up large percentages of their properties to his law firm.
Many states have recognized these problems and have passed legislation to address them, such as requiring forfeiture income go to a state school fund. The forum speakers were concerned about a way used increasingly that circumvents state reform forfeiture laws.
Federal forfeiture law allows what is called “equitable sharing,” whereby a state law enforcement agency may enter into such an agreement with a federal agency and then the forfeiture process is governed by federal law. The feds take 10 to 20 percent and give the rest back to a state law enforcement agency, even when the agency would receive none of the proceeds from state forfeitures.
Walberg said his bill, H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, would “raise the level of proof necessary for government to seize property.” He said it would place the burden of proof on the government to show the property owner had knowledge of the criminal activity. His bill seeks to restrict the use of equitable sharing agreements between the Department of Justice and local or state law enforcement. |
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Tue Oct 14, 2014 12:56 pm |
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untanglingwebs
El Supremo
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Asset seizures fuel police spending
Story by Robert O'Harrow Jr., Steven Rich
Published on October 11, 2014
Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.
ABOVE: In Douglasville, Ga, population 32,000, an armored personnel carrier costing $227,000 was bought using money taken from Americans under civil forfeiture laws.
The details are contained in thousands of annual reports submitted by local and state agencies to the Justice Department’s Equitable Sharing Program, an initiative that allows local and state police to keep up to 80 percent of the assets they seize. The Washington Post obtained 43,000 of the reports dating from 2008 through a Freedom of Information Act request.
Stop and Seize: In recent years, thousands of people have had cash confiscated by police without being charged with crimes. The Post looks at the police culture behind the seizures and the people who were forced to fight the government to get their money back.
Part 1: After Sept. 11, 2001, a cottage industry of private police trainers emerged to teach aggressive techniques of highway interdiction to thousands of local and state police.
Part 2: One training firm started a private intelligence-sharing network and helped shape law enforcement nationwide.
Part 3: Motorists caught up in the seizures talk about the experience and the legal battles that could take over a year.
Chat transcript: The reporters behind “Stop and Seize” answered readers’ questions about the investigative series.
The documents offer a sweeping look at how police departments and drug task forces across the country are benefiting from laws that allow them to take cash and property without proving a crime has occurred. The law was meant to decimate drug organizations, but The Post found that it has been used as a routine source of funding for law enforcement at every level.
“In tight budget periods, and even in times of budget surpluses, using asset forfeiture dollars to purchase equipment and training to stay current with the ever-changing trends in crime fighting helps serve and protect the citizens,” said Prince George’s County, Md., police spokeswoman Julie Parker.
Brad Cates, a former director of asset forfeiture programs at the Justice Department, said the spending identified by The Post suggests police are using Equitable Sharing as “a free floating slush fund.” Cates, who oversaw the program while at Justice from 1985 to 1989, said it has enabled police to sidestep the traditional budget process, in which elected leaders create law enforcement spending priorities.
“All of this is fundamentally at odds with the U.S. Constitution,” said Cates, who recently co-wrote an article calling for the program’s abolition on The Post’s editorial page. “All of this is at odds with the rights that Americans have"
Of the nearly $2.5 billion in spending reported in the forms, 81 percent came from cash and property seizures in which no indictment was filed, according to an analysis by The Post. Owners must prove that their money or property was acquired legally in order to get it back.
The police purchases comprise a rich mix of the practical and the high-tech, including an array of gear that has helped some departments militarize their operations: Humvees, automatic weapons, gas grenades, night-vision scopes and sniper gear. Many departments acquired electronic surveillance equipment, including automated license-plate readers and systems that track cellphones.
The spending also included a $5 million helicopter for Los Angeles police; a mobile command bus worth more than $1 million in Prince George’s County; an armored personnel carrier costing $227,000 in Douglasville, Ga., population 32,000; $5,300 worth of “challenge coin” medallions in Brunswick County, N.C.; $4,600 for a Sheriff’s Award Banquet by the Doña Ana County (N.M.) Sheriff’s Department; and a $637 coffee maker for the Randall County Sheriff’s Department in Amarillo, Tx.
Sparkles the Clown was hired with asset forfeiture proceeds by police in the Village of Reminderville, Ohio, where she painted children's faces at a community relations event. (Ron Fowler)
Sparkles the Clown was hired for $225 by Chief Jeff Buck in Reminderville, Ohio, to improve community relations. But Buck said the seizure money has been crucial to sustaining long-term investigations that have put thousands of drug traffickers in prison.
“The money I spent on Sparkles the Clown is a very, very minute portion of the forfeited money that I spend in fighting the war on drugs,” he told The Post.
About 5,400 departments and drug task forces have participated in the Equitable Sharing Program since 2008. Justice spokesman Peter Carr said the program is an effective weapon to fight crime but should not be considered “an alternative funding source for state and local law enforcement.”
“It removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime,” he said in a statement. “Any funds received through the equitable sharing program are meant to enhance and supplement, not supplant or replace an agency’s appropriated budget and resources.”
Money for gear, training
A local or state police agency can seize cash or property under federal law through the Equitable Sharing Program when a federal agency such as the Drug Enforcement Administration or Immigration and Customs Enforcement agrees to adopt the seizure under federal law. Federal agencies generally are allowed to keep 20 percent or more of the seizure after an adoption.
‘Your property is guilty until you prove it innocent’
In the wake of Sept. 11, 2001, an aggressive brand of policing called “highway interdiction,” which involves authorities seizing money and property during traffic stops, has grown in popularity. Thousands of people not charged with crimes are left fighting legal battles to regain their money.
(Gabe Silverman/The Washington Post)
In September, The Post reported that police across the country became more aggressive in their use of federal civil asset forfeiture laws after the Sept. 11, 2001, terrorist attacks. Officials at Justice and the Department of Homeland Security encouraged a technique known as highway interdiction to help in the fight against drugs and terror.
There have been 61,998 cash seizures on highways and elsewhere since 9/11 without search warrants or indictments and processed through the Equitable Sharing Program, according to an analysis of Justice data obtained by The Post.
Equitable Sharing participants must follow rules contained in a 50-page Equitable Sharing guide that require the proceeds of seizures to be used “by law enforcement agencies for law enforcement purposes only.”
Permissible uses include overtime pay, training, building construction and improvements and equipment — everything from file cabinets and fitness gear to automatic weapons, surveillance systems and cars. They also can use proceeds to buy food and drinks at conferences or during disaster operations.
Police generally may not pay ongoing salaries or otherwise support annual budgets. One exception allows for departments to pay salaries of newly hired officers for one year or officers assigned to a drug task force as a replacement “so long as the replacement officer does not engage in the seizure of assets or narcotics law enforcement as a principal duty.”
The Justice Department has about 15 employees assigned to overseeing compliance. Five employees review thousands of annual reports for discrepancies. Justice employees also use analytical tools to search for spending patterns. Several attorneys review all sharing requests for $1 million or more, Carr said, adding that the locals also do their own audits.
The annual reports from local and state police are required to help “promote public confidence” in the program and to protect against “waste, fraud and abuse,” the guidelines say. But the forms provide few details about what is actually purchased, according to documents and interviews. That is in part because the department leaves it up to local officials to decide how to categorize their spending. There is little room to provide line-item detail.
Justice’s inspector general’s office has conducted 25 audits on spending since 2008, an average of four a year, examining more than $18 million in Equitable Sharing spending, roughly three-quarters of 1 percent of the money spent during that time. Justice has challenged millions of dollars in spending as unsupported or unallowable.
One audit examined about $3.4 million in Equitable Sharing funds that the Oklahoma Highway Patrol spent from July 2009 to June 2012.
The audit found $1.9 million in unallowable and unsupported expenditures relating to salaries, overtime pay, construction, fees paid to contractors and the use of two Ford F-150 pickup trucks by non-law enforcement personnel.
Oklahoma authorities did not return calls seeking comment.
Auditors found the Mesa County, Colo., Sheriff’s Office paid thousands for projectors, scanner equipment and other items that were not intended for law enforcement. They also paid for 20 lawyers in the Mesa County prosecutor’s office to attend a conference at the Keystone ski resort. Auditors questioned more than $78,000 in spending.
The Mesa Sheriff’s Office also did not respond to calls from The Post.
Some Highlights
BearCat armored personnel carrier
Douglasville Police Department, Ga.
$227,390
27 M-4 assault rifles
Braselton Police Department, Ga.
$54,000
Coffee maker
Randall County Sheriff, Texas
$637
Sparkles the Clown
community relations program
Reminderville Police Department, Ohio
$225
RELATED GRAPHIC: SPENDING SEIZED ASSETS
Since 2008, about 5,400 police agencies have spent $2.5 billion in proceeds from cash and property seized under federal civil forfeiture laws. Police suspected the assets were linked to crime, although in 81 percent of cases no one was indicted. How much is being spent in your state?
Trading cards and BMWs
One task force used the money for a subscription to High Times, a magazine for marijuana enthusiasts, at $29.99 for a year.
Several departments bought custom-made trading cards, complete with photos and data about their officers. Some, including police in Chelsea, Mass., share them with children in their communities.
“We have found that this is a great way to build trust and foster long-lasting relationships with the youth in our community who get to know officers on a first-name basis,” said Chelsea Police Chief Brian Kyes.
Ten agencies have used the asset forfeiture funds to pay their fees for the Defense Department’s excess property initiative, better known as the 1033 program, which enables local and state police to buy surplus military-grade equipment at cut rates. The equipment includes automatic weapons, night-vision gear and clothing.
Police in Sahuarita, Ariz., paid $4,300 to outfit a Humvee obtained through the 1033 program. The New Bedford, Mass., Police Department in 2012 paid $2,119 for shipping costs for M-16s from the military.
In Brunswick County, N.C., $5,300 from asset forfeiture funds was spent on challenge coin medallions. The coins were to be shared with local residents or other law enforcement. (Brunswick County Sheriff's Office )
Dozens of sheriff and police offices paid a total of more than $100,000 for keepsakes known as “challenge coins” and lapel pins that they could share with one another and with local residents.
Scores of departments spent money on vehicles. Many of them were typical police cruisers, but dozens were new and used sports and luxury cars, including at least 15 Mercedes, a dozen Mustangs, a handful of BMWs and two Corvettes.
Others bought a variety of armored cars. Among them was the police department in Douglasville, Ga., and the sheriff’s office in Douglas County, Ga., which teamed up several years ago to buy an eight-ton, $227,000 BearCat (Ballistic Engineered Armored Response Counter Attack Truck).
Douglasville Deputy Chief Gary E. Sparks said they have used the vehicle a few times in barricade situations. But mostly it has been deployed for “officer down” and SWAT team exercises.
“It’s better to have it and not need it than need it and not have it,” he said.
Police in Ferguson, Mo., also participate in Equitable Sharing. Since 2008, the department reported using seizure proceeds to buy $18,000 in weapons and protective gear, $71,000 in computers and communications gear, and about $43,000 in electronic surveillance equipment. Some of the money was seized in partnerships with other agencies, the annual reports show.
Jurisdictions in the Washington region have used the federal asset forfeiture program as well.
Virginia State Police spent $33 million on buildings and improvements and $11 million on computers and communications gear. A state police spokeswoman said the funds came from money forfeited by Purdue Frederick Company, the maker of OxyContin, to settle allegations that the company played down the drug’s addictive properties.
The D.C. Metropolitan Police Department was a leader in spending on informants and undercover drug purchases, reporting about $3.3 million under that category. The department declined a request to provide details.
Police in Prince George’s County, Md., spent $56,000 to paint two aging helicopters and more than $1 million on a mobile command bus using asset forfeiture dollars.
Prince George’s police spent $382,000 on license-plate readers, $56,000 to paint two aging helicopters and an undisclosed amount on a “cell site simulator” that can surreptitiously track cellphones.
Parker, the Prince George’s police spokeswoman, said the cellphone-tracking system is only used under court order and that the department “follows best practice policies” when spending forfeiture funds.
Fairfax County police have spent $1.3 million on weapons and protective gear, $561,000 on buildings and improvements and $208,000 on electronic surveillance gear. The department declined to share details about the spending.
The Justice Department audited Fairfax’s spending in 2009 and 2010 and found the department had complied with the guidelines at that time.
“Our financial stewardship of our Seized Account Funds is in compliance with all Federal rules and laws, State rules and laws, County rules and laws, and we undergo audits of these accounts by local and federal agencies,” Col. Edwin C. Roessler Jr., the Fairfax police chief, said in a statement. “Additionally, we are subjected to internal audit processes to review all requests for expenditures to ensure purchases are pre-approved for compliance.”
Steady money for Ga. town
The Post analysis found that since 2008, more than 500 departments and drug task forces have reported receiving the equivalent of 20 percent of their annual spending plans at least once. Nearly 100 have done so in at least three of the past six years.
The local department that makes the most consistent use of Equitable Sharing funds per capita is in Braselton, Ga., a town of about 8,000 people along Interstate 85 northeast of Atlanta. It has reported receiving the equivalent of 20 percent or more of its budget from the Justice program in five of the past six years, documents show.
The Braselton Police Department’s approach to Equitable Sharing offers insights about the latitude the Justice Department gives local and state departments to spend seized proceeds. It also underscores how little Equitable Sharing participants are required to disclose to Justice each year.
According to the town’s annual reports, police in Braselton have spent $79,000 on weapons and protective gear since 2008, $139,000 on travel and training, $134,000 on salaries, $224,000 on computers and communications gear, $875,000 on a category characterized on the Justice form as “other,” and $905,000 on buildings and improvements.
Their spending included $806,000 for the purchase and modification of vehicles.
“It’s legit. We’re not buying stuff just to buy stuff,” he said, adding, “We spend the money if we have it. . . . It’s pretty cool. We’re not only able to help us, we’re able to help others.”
—Braselton Assistant Chief Lou Solis
In interviews, Assistant Chief Lou Solis said that not all the reported spending went to items for the town police. He said that Braselton uses its membership in the Equitable Sharing Program to buy things for law enforcement partners, such as the Georgia State Patrol.
The federal guidelines allow the formation of task forces and the participants to decide how to split the seizures among themselves, with Justice’s approval. Most of Braselton’s seizure proceeds came as a result of its participation in an Atlanta-based DEA drug task force that relies heavily on local police. Braselton has one officer assigned to the task force, Solis said.
Braselton police recently paid $6,000 for copiers for a nearby DEA office. “The DEA says, ‘Hey man, we need a copier,’ ” Solis said.
In some instances, town police help out on “whisper stops” after receiving informal tips about smugglers from the DEA, he said. Some of the seizures are made by the state patrol on nearby I-85, with help from Braselton officers, he said.
State police have sometimes partnered with Braselton on seizures in exchange for pledges from town police to provide cars and equipment for the state police. For example, Solis said, Braselton police recently bought 27 M-4 assault rifles, at about $2,000 each, for state police with proceeds from Equitable Sharing. Braselton also paid almost $8,000 in program funds for radar, lights and a tag reader for the state police.
The deals with Braselton enabled state police offices to receive the direct benefit of seizure proceeds rather than have the money go through the state patrol’s general fund, according to Solis and Capt. Kermit Stokes, a state patrol official.
Braselton police also used seizure proceeds to build an enclosed shooting range used by local, state and federal authorities, including the Department of Homeland Security, which also contributed funding, Solis said.
“It’s legit. We’re not buying stuff just to buy stuff,” he said, adding, “We spend the money if we have it. . . . It’s pretty cool. We’re not only able to help us, we’re able to help others.”
In every instance, planned purchases are submitted to town authorities before being approved by Braselton’s police chief, he said. Every request from Georgia’s state patrol is accompanied by a formal letter, as required by the Justice program, he said.
“It’s checked and it’s double-checked,” Solis said about the spending. “It’s audited.”
When town police help out, other agencies sometimes promised to include them in a “DAG-71,” the federal form that specifies how sharing should occur. So many seizures have occurred in recent years, leading to so much sharing among local, state and federal authorities, that it has become common for one officer to tell another, “We’re going to ‘DAG you in,” Solis said.
After The Post brought the transactions to Justice’s attention, a department official told Braselton to stop using Equitable Sharing funds to buy items for other departments, said Carr, the Justice spokesman. Such transactions were not “explicitly prohibited previously,” but a new interim guidance for the program was issued this summer, Carr said.
“Braselton Police Department is now aware that this is not permitted and has assured the department it will comply with the new guidance,” Carr said. He added that other departments had made similar transactions in recent years.
Braselton Police Chief Terry Esco said he was not aware of the interim guidance but is happy to comply.
“We just never received the e-mail,” he said.
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Tue Oct 14, 2014 1:10 pm |
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