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The Use and Abuse of Civil Forfeiture
August 5, 2013 3:40 PM   Subscribe

Taken: The Use and Abuse of Civil Forfeiture. "Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?" [Via]
posted by homunculus (89 comments total) 77 users marked this as a favorite

 
This is incredibly fucked up and a must-read.
posted by wemayfreeze at 3:41 PM on August 5, 2013 [3 favorites]


Another case involves a monthly social event that had been hosted by the Contemporary Art Institute of Detroit. In the midst of festivities one evening in late May, 2008, forty-odd officers in black commando gear stormed the gallery and its rear patio, ordering the guests to the ground. Some in attendance thought that they were the victims of an armed robbery. One young woman who had fallen only to her knees told me that a masked figure screamed at her, “Bitch, you think you’re too pretty to get in the mud?” A boot from behind kicked her to the ground. The officers, including members of the Detroit Police Department’s vice squad and mobile tactical unit, placed the guests under arrest. According to police records, the gallery lacked proper city permits for after-hours dancing and drinking, and an old ordinance aimed at “blind pigs” (speakeasies) and other places of “illegal occupation” made it a crime to patronize such a place, knowingly or not.

After lining the guests on their knees before a “prisoner processing table” and searching them, the officers asked for everyone’s car keys. Then the raid team seized every vehicle it could find, even venturing to the driveway of a young man’s friend nearly a mile away to retrieve his car. Forty-four cars were taken to government-contracted lots.

Most of those detained had to pay more than a thousand dollars for the return of their cars; if payment wasn’t made promptly, the car would become city property. The proceeds were divided among the offices of the prosecutors, police, and towing companies. After the A.C.L.U. filed a suit against the city, a district court ruled that the raid was unconstitutional, and noted that it reflected “a widespread practice” by the police in the area. (The city is appealing the ruling.) Vice statutes have lent themselves to such forfeiture efforts; in previous years, an initiative targeted gay men for forfeiture, under Detroit’s “annoying persons” ordinance. Before local lawyers challenged such practices, known informally as “Bag a Fag,” undercover officers would arrest gay men who simply returned their glances or gestures, if the signals were deemed to have sexual connotations, and then, citing “nuisance abatement,” seize their vehicles.

posted by wemayfreeze at 3:43 PM on August 5, 2013 [31 favorites]


I'm no constitutional scholar, but I'm pretty sure this is exactly the Framers were trying to prevent when they wrote the Fourth Amendment.
posted by entropicamericana at 3:48 PM on August 5, 2013 [16 favorites]


Irvin Nathan, acknowledged “very real problems” relating to due-process rights. But he warned that millions of dollars raised by forfeiture “could very easily be lost”

That's exactly the point, fuckwad!
posted by ShutterBun at 3:49 PM on August 5, 2013 [53 favorites]


You know, it's funny. I recall reading a story in a magazine just like this one over 20 years ago, when I was in high school. I've seen it pop up time and again over the years.

It's authoritarian bullshit all the way around. But it's also very popular with the authoritarian types.
posted by Pogo_Fuzzybutt at 3:55 PM on August 5, 2013 [4 favorites]


There's more. The funding from drug forfeitures -- along with other drug connected law enforcement funding -- has long been the driver behind differential enforcement of the drug laws. All that money ramps up police presence in communities of color, resulting in vastly different, racially slanted arrest and prosecution rates of people of color versus white people. . . . though people of color do not use or possess drugs more than white people do. No kidding, this is a major cause of the new Jim Crow.
posted by bearwife at 4:15 PM on August 5, 2013 [17 favorites]


The public records I reviewed support Rulli’s assertion that homes in Philadelphia are routinely seized for unproved minor drug crimes, often involving children or grandchildren who don’t own the home. “For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics,” Rulli told me. “It has a very disparate race and class impact.” He went on to talk about Andy Reid, the former coach of the Philadelphia Eagles, whose two sons were convicted of drug crimes in 2007 while living at the family’s suburban mansion in Villanova. “Do you know what the headline read? It said, ‘the home was an “emporium of drugs.” ’ An emporium of drugs!” The phrase, Rulli explained, came directly from a local judge. “And here’s the question: Do you think they seized it?”

Good article. Thanks for posting it.
posted by Blazecock Pileon at 4:18 PM on August 5, 2013 [2 favorites]


I'm no constitutional scholar, but I'm pretty sure this is exactly the Framers were trying to prevent when they wrote the Fourth Amendment.

Has the Supreme Court ever ruled on this practice? Because on its face it's hard to imagine how you defend it.
posted by yoink at 4:25 PM on August 5, 2013 [2 favorites]


google search on (government auction seized property) returns > 3 million hits. Federal, state, and city including my zip code on the first page.
posted by bukvich at 4:27 PM on August 5, 2013


Every time I think I've hit Peak Outrage, new techniques and information wring a few more barrels from the well..

Not a word of exaggeration when I say that reading this article made me nauseated. The blatant, systematic miscarriage of justice described... it's simply disgusting.
posted by dubold at 4:29 PM on August 5, 2013 [9 favorites]


Irvin Nathan, acknowledged “very real problems” relating to due-process rights. But he warned that millions of dollars raised by forfeiture “could very easily be lost”

This made me want to throw my laptop out the window. Here is a DA basically saying "if my right to steal and extort property from innocent victims is taken away, my office will take a financial hit". How the fuck can this be happening?
posted by Seymour Zamboni at 4:30 PM on August 5, 2013 [10 favorites]


This is why I've never been to or through Louisiana*. Makes me realize how darned lucky I am that I pass for white ...

* This is where I first read about it, probably Reader's Digest, 20+ years ago.
posted by tilde at 4:36 PM on August 5, 2013 [2 favorites]


Wait till you get to the part where they let actual drug mules go, in exchange for the "seizure".

Cynical interpretation: Crooked cop apprehendeds known mule, seizes cash, draws a bonus from it, and then maybe looks the other way the next time. Now the bagman no longer has to worry about laundering the money.

WHEREFORART THOU, SERPICO?
posted by butterstick at 4:40 PM on August 5, 2013 [4 favorites]


I am barely able to avoid leaving the simple, foul, three word comment I feel compelled to.

Let's just say that "the police" in general should go have intimate relations with themselves. And they will never--EVER--get this liberal to vote for a single penny in increased funding.
posted by General Tonic at 4:47 PM on August 5, 2013 [5 favorites]


Washington declined to be interviewed at any length for this story, he did say that he “provided a great service to this nation,” and stressed the importance of taking drug trafficking seriously. “There’s a good side and a bad side, and the good side will always win,” he told me. “Jesus knows who’s done what, and what was fair and what was unfair. And I would never do anything to embarrass Him. And that’s it. That’s the end of the story.”


Barry Washington, as deputy city marshal, received a ten-thousand-dollar personal bonus from the fund. (His base salary was about thirty thousand dollars; Garrigan later confirmed reports that Washington had received a total of forty thousand dollars in bonuses.)
You better hope the good side don't win mate.
posted by fullerine at 4:48 PM on August 5, 2013 [5 favorites]


Can somebody explain any theory that somehow doesn't make this an uncompensated taking? This seems like a straight-up violation of the 5th Amendment.
posted by delicious-luncheon at 4:48 PM on August 5, 2013 [2 favorites]


It seems to me that this is coming up on fifteen years or more that I've heard of this bullshit. Why were we so complacent when it first started getting abused? We only have ourselves to blame for letting this continue. More fuckholery from the inane War on Drugs and the Move to Keep Brown Down. To overuse a phrase that's been au courant for more than a decade now, does this shit happen in Canada?
posted by Purposeful Grimace at 4:52 PM on August 5, 2013 [3 favorites]


They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash [$6,037] to the city of Tenaha, and get back on the road.

If the charges are legitimate, the DA is allowing bad parents to pay six grand for the privilege of endangering children. If the DA does not believe that charges are legitimate, she is using custody rights to extort money from an innocent mother.

Is there a word for something that is sad and disgusting at the same time?
posted by compartment at 4:55 PM on August 5, 2013 [5 favorites]


does this shit happen in Canada?

The Wikipedia entry on Asset Forfeiture says it is practised in one form or another in Canada, Ireland, the UK and the US. The Canadian provincial Asset Forfeiture laws sound similar to the US ones.
posted by yoink at 4:57 PM on August 5, 2013


I'm starting to think threat of seizure of children for any reason than their safety should be counted as torture- no parent should be expected to behave rationally anymore than if you pointed a gun to their head.
posted by Phalene at 4:58 PM on August 5, 2013 [9 favorites]


They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash [$6,037] to the city of Tenaha, and get back on the road.

"Nice kids you've got there. Be a shame if anything happened to them..."
posted by yoink at 4:59 PM on August 5, 2013 [5 favorites]


Yes, the Supreme Court has ruled on this issue, and is totally cool with it. See, e.g., United States v. The Cargo of the Brig Malek Adhel, 43 U.S. 210 (1844), in which Justice Story wrote, "The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner." In other words, the rights of the owner aren't what's at issue here, it's the "guilt" of the inanimate object itself.

I wrote an in-depth research paper on this topic in law school, and I'll try to dig it up and post more later. But the key thing that I found in my research is that this is a topic that civil libertarians latch onto when it's a convenient hook for other things they want to get done. The ACLU, for example, was excellent on this issue in the mid-90s, during debates on the Civil Asset Forfeiture Reform Act. Then President Clinton quietly made an agreement with law enforcement to sign a watered-down version of CAFRA in 2000, and the ACLU withdrew its support, blaming Henry Hyde rather than Clinton for the failure of the reform, and then didn't take the issue up again for more than a decade. The people who have been the consistent champions of reform have been the property rights advocates of the US political right, who see it as outrageous that the government is taking private property without due process.

This has been going on under color of law for as long as there's been common law, and probably longer. It was originally called "deodand" and was part of the power of kings to adjudicate the guilt of any person or thing under his control. It was one of the causes of the American Revolution, when British customs officials issued writs of assistance to seize the colonists' property and give the proceeds to the Crown. And it's never stopped. Whoever has been in power, at every level of government, has always had the power to do this in America. The only question at any given time is whether the whims of politics have ignored it as it was happening.
posted by decathecting at 5:00 PM on August 5, 2013 [44 favorites]


Has the Supreme Court ever ruled on this practice? Because on its face it's hard to imagine how you defend it.

Give it a few comments and someone here will probably try it. I'm in no doubt there are people who think THIS IS THE ACME OF JUSTICE.
posted by JHarris at 5:02 PM on August 5, 2013


Oh...and not to be out done by Texas, the goings-on in Detroit are a must read part of the article. The targeting of gay people was particularly innovative:

Before local lawyers challenged such practices, known informally as “Bag a Fag,” undercover officers would arrest gay men who simply returned their glances or gestures, if the signals were deemed to have sexual connotations, and then, citing “nuisance abatement,” seize their vehicles.
posted by Seymour Zamboni at 5:10 PM on August 5, 2013 [2 favorites]


> Yes, the Supreme Court has ruled on this issue, and is totally cool with it.

A lot of innocent people will be hurt when America collapses, but I frankly feel that it's long overdue.
posted by lupus_yonderboy at 5:11 PM on August 5, 2013 [5 favorites]


In other words, the rights of the owner aren't what's at issue here, it's the "guilt" of the inanimate object itself.

If the owners of the object aren't permitted to step in to defend its rights, then there's still zero due process here.
posted by one more dead town's last parade at 5:12 PM on August 5, 2013 [2 favorites]


I remember reading an article in my grandmother's Reader's Digest about some little town in Iowa that was making a ton of money by using forfeiture against random motorists- this was maybe the late 80's or early 90's? I thought that was terrible and there was no way the government would allow such a thing to continue.

I don't miss my innocence.
posted by Pope Guilty at 5:13 PM on August 5, 2013 [4 favorites]


Okay, 18 years ago, read about it 13 yrs ago. Feels longer. :| Worried about an upcoming road trip through the south now, protective "coloration" aside.
“When it’s done right, civil forfeiture is one of our most valuable tools,” he said.
When it'$ done wrong, too.
The investigation had drawn on resources from the Arizona Counter Terrorism Information Center—a so-called “fusion center” in Maricopa County meant to integrate mundane local crime data with federal intelligence streams, in search of clues about terrorism plots. Homeland Security Secretary Janet Napolitano once hailed the fusion-center initiative as “one of the centerpieces of our counterterrorism strategy.” It has since lost lustre. Last fall, a Senate report concluded that these centers have produced mostly “irrelevant, useless or inappropriate intelligence reporting.” A Senate aide involved in the report told me that investigations prompted by the local centers often veer toward prospects with lucrative cash-seizure potential.

[See Also]
posted by tilde at 5:20 PM on August 5, 2013


Oh my god, tilde, it was Louisiana (I misremembered LA as IA) and THAT IS TOTALLY THE ARTICLE!

I can't figure out if I'm happy to see something I thought I remembered or just sad at remembering something terrible accurately.
posted by Pope Guilty at 5:23 PM on August 5, 2013


The Wikipedia entry on Asset Forfeiture says it is practised in one form or another in Canada, Ireland, the UK and the US. The Canadian provincial Asset Forfeiture laws sound similar to the US ones.
The difference being "subsequent to conviction" (Canada) and "which may follow a criminal conviction" (UK)
posted by fullerine at 5:31 PM on August 5, 2013 [5 favorites]


From frontline:

"Nineteen eighty-four was the year that Congress rewrote the civil forfeiture law to funnel drug money and "drug related" assets into the police agencies that seize them. This amendment offered law enforcement a new source of income, limited only by the energy police and prosecutors were willing to put into seizing assets. The number of forfeitures mushroomed: Between 1985 and 1991 the Justice Department collected more than $1.5 billion in illegal assets; in the next five years, it almost doubled this intake. By 1987 the Drug Enforcement Administration was more than earning its keep, with over $500 million worth of seizures exceeding its budget. "

It seems like only yesterday that it was Morning in America, and Ronnie and Mommy were exhorting people to "Just Say No."
posted by the Real Dan at 5:37 PM on August 5, 2013


In Canada, you can also not necessarily seize, for example, a home if you use it to grow pot. If you bought it only for pot-growing purposes, yes; if you also live there, probably not.

Also, the money goes to victim compensation, mostly.
States that place seized funds in a neutral account, like Maine, Missouri (where proceeds go to a public education fund), North Dakota, and Vermont, have generally avoided major forfeiture-abuse scandals. Problems seem to arise in states—such as Texas, Georgia, and Virginia—with few restrictions on how police can use the proceeds.
So between the "generally need to be guilty before you lose the asset permanently" (there are some issues regarding driving drunk that I think cloud the water a bit) and the "the police who take the asset don't get the money", it doesn't appear to be as big a problem.
posted by jeather at 5:38 PM on August 5, 2013 [3 favorites]


The difference being "subsequent to conviction" (Canada) and "which may follow a criminal conviction" (UK)

Wrong. Or rather, incomplete. Just as in the U.S., assets can be seized either pursuant to a criminal conviction of the owner or irrespective of any conviction, both Canada and the UK also have provisions to seize assets prior to or without conviction. Those schemes are described in the links from that same wikipedia article you cited.

In Canada, the scheme is basically the same as in the US: the property can be found guilty by "balance of probabilities" (similar to "preponderance of the evidence" in the US) without any criminal conviction (see, e.g., Ontario's Civil Remedies Act of 2001). That report outlines millions of dollars in seizures in just a few years in only one province.

In the UK, it appears that the situation may actually be even more bizarre. Under the Proceeds of Crime Act of 2002, Section 5, the UK government can seize property obtained through unlawful conduct that "occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country." In other words, the "crime" doesn't even have to be a crime in the UK. If it's illegal where the property was obtained, the UK government can seize and keep it. And that's in addition to seizing any property connected with illegal conduct that was actually committed in the UK. Even the US (as far as I can tell) only allows forfeitures for offenses that are not crimes in the US if those offenses are capital crimes where they were committed or if they would be crimes punishable by a year or more in prison if committed in the US.

So yeah, again, this is not a thing that only happens in uncivilized, backwards parts of America. This is a widespread practice in common law countries, including those we like to think of as being humane and rational on civil liberties issues. It happens frequently, with little oversight, and with very little organized resistance by even the activist groups we think of as leaders on criminal justice and individual rights issues.
posted by decathecting at 5:46 PM on August 5, 2013 [3 favorites]


Why do I suspect this never happens to wealthy people? Or at least the "right" wealthy people?
posted by maxwelton at 6:23 PM on August 5, 2013 [1 favorite]


I'd heard about the Tenaha case, but the Detroit twist was new and extra-special. Constitutional freedoms are for other people.

Civil forfeiture is a lot like hotel taxes: a means of raising money that doesn't squeeze the wallets of taxpayers. If we funded our local governments, including law enforcement but by no means limited to it, adequately, maybe we could just ban civil forfeiture. But that would get in the way of militarizing our police and selling them every bit of equipment we can (drones, riot gear, etc.), so that's probably a hopeless dream.
posted by immlass at 6:32 PM on August 5, 2013


Is there a word for something that is sad and disgusting at the same time?

Sadgusting?
posted by goethean at 6:35 PM on August 5, 2013


Is there a word for something that is sad and disgusting at the same time?

America.

Sigh.
posted by KHAAAN! at 6:53 PM on August 5, 2013 [3 favorites]


Her faith in the power of forfeiture, too, appears unshaken. After the county and the state decided not to provide her with legal representation, she asked to use the county’s forfeiture fund to finance her own defense.
megatroll
posted by mulligan at 6:59 PM on August 5, 2013


“The eye-opening event was pulling those files,” Guillory told me. One of the first cases that caught his attention was titled State of Texas vs. One Gold Crucifix. The police had confiscated a simple gold cross that a woman wore around her neck after pulling her over for a minor traffic violation. No contraband was reported, no criminal charges were filed, and no traffic ticket was issued. That’s how it went in dozens more cases involving cash, cars, and jewelry. A number of files contained slips of paper of a sort he’d never seen before. These were roadside property waivers, improvised by the district attorney, which threatened criminal charges unless drivers agreed to hand over valuables.

This is too pathetic for words.
posted by leftcoastbob at 7:06 PM on August 5, 2013 [1 favorite]


I remember the first civil forfeiture case I saw. The cops seized the family car because they claimed it was being used to traffic narcotics. No one in the family was ever charged with anything, and because it's a fictional civil case there's no right to a public defender. So a working class family has the option of hiring a lawyer for $5000 to defend a car that's worth $3500 from forfeiture. And that doesn't matter anyway because they don't have the cash anyway and everyone knows it. This kind of crap makes the difference between a family making it to work and keeping their heads above water and just sliding over the edge, and it's based on a defect in the ancient common law. The notion that it should be possible to sue things instead of people is insane nonsense. The notion that these actions are civil and not criminal is stupid, and learning about this makes people lose faith in our legal system. SCOTUS should have tried thinking the way a real person thinks before they declared this to be OK multiple times.
posted by 1adam12 at 7:07 PM on August 5, 2013 [14 favorites]


Whether this should be the law—whether, in the absence of a judicial finding of guilt, the state should be able to take possession of your property

What conceivable reason could justify this? Obviously there's a lot of legal history, and some of the departments do offer examples of this being used for good, but is there a case where it's actually necessary for good?

Can someone explain why going after a drug dealer's requires a method that isn't predicated on a conviction? Based on the examples in the article I can't think of a legitimate case where a conviction would present a serious obstacle.
posted by 23 at 7:21 PM on August 5, 2013


"Problems seem to arise in states—such as Texas, Georgia, and Virginia—with few restrictions on how police can use the proceeds."

Hmmmm. Whatever could the reason be?
posted by gingerest at 7:22 PM on August 5, 2013 [3 favorites]


td;cf

too depressing; couldn't finish
posted by goHermGO at 7:35 PM on August 5, 2013 [5 favorites]


Can somebody explain any theory that somehow doesn't make this an uncompensated taking? This seems like a straight-up violation of the 5th Amendment.

If we lived in constitutional republic rather than a corrupt police state, I guess that would matter.
posted by empath at 7:37 PM on August 5, 2013 [6 favorites]


since almost all US currency has trace amounts of cocaine in it, they should just seize all US cash since it has been used to buy drugs at some point. you can get your preponderance of evidence from the idea that it was most likely the last person who owned it.
posted by cupcake1337 at 7:50 PM on August 5, 2013


The idea is that criminals shouldn't keep the tools of criminal trade, or the profits of such trade. All it takes is greed and abuse of power, i.e, corruption, to subvert the law. The state attorney general should look into this, but Hey good buddy, wink, wink, nudge, nudge, that doesn't seem to be happening. If a law can be abused, it will be.
posted by theora55 at 8:08 PM on August 5, 2013


Some in attendance thought that they were the victims of an armed robbery.

They were.
posted by EXISTENZ IS PAUSED at 8:11 PM on August 5, 2013 [26 favorites]


> Can someone explain why going after a drug dealer's requires a method that isn't predicated on a conviction? Based on the examples in the article I can't think of a legitimate case where a conviction would present a serious obstacle.

The genesis of modern forfeiture law appears to be a desire to increase the number of tools available for fighting organized crime. For a second, let's think about the most charitable example, even though it's bullshit: a criminal kingpin who never gets his hands dirty enough to establish culpability beyond reasonable doubt.

In this situation, the burden of proof is understandably high, because we should always be super sure before we incarcerate a person. But, as the reasoning goes, the burden of proof would be lower if all you wanted to do was go after his stuff.

Now, I'm calling this the most charitable example because it's the one that the district attorney will trot out when she's defending the concept of forfeiture, even though 99% of the time that isn't how it's actually used. But that's how it was sold — as a tool that makes it easier to fight organized crime. If law enforcement needed a conviction before they could go after the assets, they'd be no better off than before, and you'd need a different sales pitch.
posted by savetheclocktower at 8:17 PM on August 5, 2013 [1 favorite]


Now, I'm calling this the most charitable example because it's the one that the district attorney will trot out when she's defending the concept of forfeiture, even though 99% of the time that isn't how it's actually used. But that's how it was sold — as a tool that makes it easier to fight organized crime. If law enforcement needed a conviction before they could go after the assets, they'd be no better off than before, and you'd need a different sales pitch.

It seems like even in that example there would be zero down sides to requiring a writ from a judge at the very least.
posted by jason_steakums at 8:34 PM on August 5, 2013 [2 favorites]


This has been a fucked-up must read for nearly four decades now. Stealing Property as "instruments of crime" absent conviction

1. Yacht leasing company leases yacht to client
2. client is boarded by customs agents on the SS Not-my-Yacht.
3. Customs agents find the ubiquitous roach in the ashtray, impounds and seizes yacht title under civil asset procedure.
4. Yacht lease company says WTF! Supreme Court??
5.Supreme Court: We're fine with this governmental taking of private property.
That, in a nutshell, is the the landmark case that started the free-for-all that continues to this day.

Nineteen.Seventy.Four.
CALERO-TOLEDO v. PEARSON YACHT LEASING CO., 416 U.S. 663 (1974)
posted by Fupped Duck at 9:55 PM on August 5, 2013 [20 favorites]


Will they not be happy until we're all so afraid that we just cower in our houses? Do sonsabitches like Washington really think they're doing God's work and pursuing justice by stealing the money a struggling family want to use to buy a car? How the hell does he even sleep at night? That's about all I can get down without descending into a full on Class V Profane Tirade, so I'll have to leave it there.
posted by ob1quixote at 10:09 PM on August 5, 2013 [4 favorites]


This gets even more depressing when combined with the recent news that the DEA is getting tips from the NSA's wiretaps of Americans. So, it is not a farfetched scenario in which someone who angers the powers that be finds themselves deprived of all their property without trial. Or maybe the SWAT team just shows up and decides that there's a need for deadly force.
American citizens dead without a warrant/trial/conviction is new, but not unheard of, and it seems to be getting easier and easier for the authorities to do.
posted by bashos_frog at 10:14 PM on August 5, 2013 [2 favorites]


Will they not be happy until we're all so afraid that we just cower in our houses?

That's when they send in the SWAT team.
posted by homunculus at 10:23 PM on August 5, 2013 [2 favorites]


CALERO-TOLEDO v. PEARSON YACHT LEASING CO., 416 U.S. 663 (1974)
Nineteen.Seventy.Four.

"Nineteen eighty-four was the year that Congress rewrote the civil forfeiture law to funnel drug money and "drug related" assets into the police agencies that seize them."


9/11 did NOT "change everything". It just added to the excuses for abuse. The problems are hard-wired into America's "law enforcement" system (I can't write the term without scare-quotes anymore).
posted by oneswellfoop at 10:28 PM on August 5, 2013 [2 favorites]


Can someone explain why going after a drug dealer's requires a method that isn't predicated on a conviction?

I happen to think that the abuse of these laws shows that they are too dangerous to be used, but I'll argue the other side:

These laws aren't meant to punish people; they're meant to remove criminals' access to the tools of crime. They do this in two ways: (1) physically depriving criminals of property used to commit crime; and (b) making it too risky for other people to lend or hire property to criminals.

Suppose you find a drug factory, or a vehicle equipped to transport drugs. The people you arrest may not be the actual owners of the factory or the vehicle, and it's going to be hard to prove that the owner knew anything about the criminal activity. In fact the "owner" might be a corporation and the company directors may be guilty of nothing more than lax supervision. So how do you proceed? You want to get these things away from criminals, but it's going to take months or years for a conviction - and even then you'll have to prove ownership. In the meantime, the tools will keep on being used.

The answer is civil forfeiture. You proceed against the property, not the person. You close down the drug factory or seize the vehicle, and if the owner wants to recover the goods they will have to come forward - which will help any criminal prosecution, of course. Civil forfeiture destroys the environment in which crime takes place and is therefore more effective, and less harmful to society than criminal penalties. The war against crime has deprived many children of their parents; far better that we come down harshly on criminal tools rather than people who have a real part in society.
posted by Joe in Australia at 11:34 PM on August 5, 2013 [1 favorite]


Why were we so complacent when it first started getting abused?

Why were "we" so complacent? Because so many people thought it would never happen to them.

It's cool to illegally seize the property of drug dealers and criminals, of course. Those people don't deserve civil protection. But when it comes to decent hard-working Americans, boy howdy we have a problem! Unless of course it's Republicans complaining about it because of property. Fuck those guys, I don't want to work with those guys or say those guys might be right about anything.

This should never have happened to anyone. We should never have been okay with it happening to anyone. We let our partisan bullshit and our holier-than-thou bullshit let it get entrenched. We have no right to feel shocked at the monster we have created.

But we damn sure need to kill that beast.
posted by corb at 3:43 AM on August 6, 2013 [1 favorite]


Thanks Joe for arguing the other side. To all that I would ask why there can be no due process for getting the property (or proceeds since it could be argued the inventory needs to be liquidated immediately since there's so darn much!) returned after some period of time has passed. One argument would be "how do you know when enough time as passed?" and I think some ongoing investigation either needs to be taking place on a given case involving a seizure, or this is some RICO-eligible evil shit that merits a federal asswhoopin'.

Even if it's entrenched in common law across the state and federal fabric clearly it's being abused in some states more than others, though a certain type might argue that if you don't like that state, don't live there or drive through it :) I think it should be possible to come up with a jury-lite system for appealing particularly egregious seizures. Ultimately all arguments in favor of letting the "tool" be so easy to abuse amount to "it needs to be swift and brutal and we can't spend any money setting up a system for people to legitimately get their shit back because that would cut into the HOLY SHITBALLS TONS OF MONEY we're stealing!"
posted by lordaych at 3:54 AM on August 6, 2013


Also from an economies of scale standpoint, it could be easy to see this "tool" being abused in a cyclical method that ultimately breeds more crime and seizures (gasp!). I mean it's more complicated than this, but imagine if you sold a product with such insane profit margins that 98% of it could be seized and 50% of the shit you or your cohorts bought with it could be seized and you'd still be doing amazingly well, why, you might just consider those things the cost of doing business and over time the people seizing your shit just might come to really depend on your illicit operations and just might never really want to completely shut them down! Luckily with the drug war, you don't even have to play ball with any given major player to keep the game running, there's just too much fucking money to be made (thanks to all of these taxes and risks associated with the trade) for some person or organization not to fill a missing kingpin's vacuum.
posted by lordaych at 3:58 AM on August 6, 2013 [1 favorite]


To summarize, this is to me a stupid notion:

"We can win the war on drugs by eradicating the drugs themselves and arresting people who use, own, or sell them."

This is even stupider:

"The agencies that fight this war by doing the above would like to see it end, and it's in their best interests to pursue the most effective remedies at reducing drug use and harm associated with drug use using the most research-supported approaches possible."
posted by lordaych at 4:06 AM on August 6, 2013 [2 favorites]


I'm no constitutional scholar, but I'm pretty sure this is exactly the Framers were trying to prevent when they wrote the Fourth Amendment.

Isn't this really a Fifth Amendment concern?
nor shall any person ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
posted by BobbyVan at 4:58 AM on August 6, 2013 [3 favorites]


Unless of course it's Republicans complaining about it because of property. Fuck those guys, I don't want to work with those guys or say those guys might be right about anything.

*CTRL-F "Republican"*

Interesting.
posted by Rustic Etruscan at 5:19 AM on August 6, 2013 [1 favorite]


Some in attendance thought that they were the victims of an armed robbery.


Which, it turns out, is exactly what they were.

Predictably, the defense of this piratical practice isn't that it's a reasonable search and seizure with full respect to due process of law, but that it's a useful tool for law enforcement. Feh.
posted by Gelatin at 6:28 AM on August 6, 2013 [2 favorites]


*CTRL-F "Republican"*

I should stress, "We" equals "Americans", not "mefites." I think most mefites actually skew slightly higher on civil liberties than the general populace, and even if every single one voted against these abuses, we're only a tiny subsection of the population.
posted by corb at 6:44 AM on August 6, 2013


The beginning of this (I don't want to be perpetually angry today so I stopped halfway through the first example) just reminded of the 'how to speak to the police' series of videos.

"Am I being detained, officer?" If yes, => lawyer and ignore their threats for your own long term good. If no => "Am I free to go, officer?" If no => "Then am I being detained, officer?"

In addition to never ever let them just search your car holy shit what are you thinking. "I do not consent to this search" and then either get ready to go on with you're day or at least then you'll have an idea of the amount of shit that particular officer is willing to dump on you.
posted by Slackermagee at 6:45 AM on August 6, 2013 [7 favorites]


One important fact we aren't disucssing much, bearwife brought it up and I'll second her: this is not being contested widely because it isn't *practiced* widely. Asset Forefiture is, like so much else in the War on Drugs, racially focused.

White folks get hit by asset forefiture from time to time, but the main victims are black or brown. If asset forefiture hit white folks as hard as it hits black folks the practice would have been ended decades ago.

What we are looking at here is one more method by which black and brown people can be kept down, economically speaking. When we realize that Nixon won and what we call the "War on Drugs" is, in fact, a War on Blacks a lot becomes clearer.

Drug dealing and use is roughly the same among all racial groups ("roughly" because some studies indicate that whites may be somewhat more likely to use and deal drugs than other racial groups). But drug *enforcement* is focused with laserlike precision on black and brown people. Over 80% of people arrested for drug charges are black, while only 16% of drug dealers and users are black.

The War on Drugs serves the purpose of disenfranchising large numbers of black men (it's estimated that in some states well over 30% of black men are forbidden from voting, forever, due to drug arrests), but also in shuffling all black people arrested for drug crimes into an undercaste which is forbidden by law from advancing economically. It is not merely legally permitted, but legally encouraged, to discriminate against conficted felons, and drug crimes are singled out for special post-prison punishment.

If a person was convicted of rape, murder, theft, extortion, or any other crime after serving their time in prison they can sign up for and receive federal loans and grants for college. If a person is convicted of any drug crime they are forever banned from loans and grants for college, food stamps, housing aid, etc.

Asset forefiture is simply a way for the state to discourage economic success among black and brown people. Unlike the other parts of the War on Drugs, asset forefiture doesn't even require that there be any evidence of crime, or that even among the obscenely rigged rules of the game the victm be found guilty of any crime. Instead all the police have to do is simply take goods and money from black or brown people and claim they thought those stolen goods might be used in a crime.

Even in the Deep South at the height of Jim Crow it took more than that for the state to randomly impovrish a black family.

Read *The New Jim Crow*. It's a slow read, not because the book is dense but because you'll have to put it down every few pages simply to avoid exploding out of sheer rage.
posted by sotonohito at 7:07 AM on August 6, 2013 [11 favorites]


@Slackermagee, try that as a black man and see how quick you get tazed, or shot, or simply beaten for "resisting arrest".
posted by sotonohito at 7:08 AM on August 6, 2013 [1 favorite]


Isn't this really a Fifth Amendment concern?

Like I said, I'm no constitutional scholar, but
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
posted by entropicamericana at 7:35 AM on August 6, 2013


Only one state, North Carolina, bans the practice, requiring a criminal conviction before a person’s property can be seized.

I wonder how long that condition will prevail.

Some bizarre phrases in the article jumped out at me:
suspicious deployment of air fresheners
driving too close to the white line
pretextual traffic stops
posted by Kirth Gerson at 7:40 AM on August 6, 2013


The difference in Canada is that every part of the process has to be authorized by a judge. That and most of the money goes to victim compensation-based things, which is also good. But I think yeah, having that intermediary is the key part.
posted by Lemurrhea at 8:19 AM on August 6, 2013


@Kirth, "pretextual traffic stops" are interesting. That's where the traffic stop is merely an excuse for a drug search. The police have broad (and Supreme Court approved) authority to selectively enforce traffic laws, and there is always a reason the police can come up with for a traffic stop (driving 1mph over the speed limit, driving too close to the line, driving too slow, crowding other drivers, slowing when they saw the police car, etc, etc, etc).

It has been proven, both scientifically and in court, that police stop black and brown drivers at vastly higher rates than they stop white drivers. Once stopped, they ask permission to search the car for drugs, the key phrase here is "consent searches". This is because while technically they "ask permission", they do so in a way that doesn't sound like asking, and doesn't give the impression that the person being searched can refuse. And, of course, if the person does refuse that's probable cause to hold them while they get a judge to sign a warrant.

The Supreme Court ruled that while it was indisputable that the police were targeting black and brown drivers, this was perfectly legal and could not be grounds for any legal action unless someone could prove that the police did so out of deliberate and intentionally racist motives. Unless, basically, you can get a cop on tape saying that they stop black people more because they really don't like black people, then per the US Supreme Court no amount of proof that the police are systemically targeting black people justifies any legal action to prevent such targeting.

THi is, of course, yet another entryway into the official American undercaste. Since the police essentially ignore white people while focusing their entire enforcement might on black people, black amount to over 80% of convictions and arrests resulting from pretextual traffic stops. And, of course, if any drugs, paraphanelia, or any reason at all to suspect the car was involved with drug crimes can be invented, then the car is subject to asset forefiture even if the driver is never charged with a crime at all. Again, since this practice is directed almost exclusively at black and brown people, it amounts to a systemic effort to inflict significant economic harm to those ethnic groups.
posted by sotonohito at 8:31 AM on August 6, 2013 [1 favorite]


> In addition to never ever let them just search your car holy shit what are you thinking.

You shouldn't be so judgmental unless you actually know your material.

The motor vehicle exception "allows an officer to search a vehicle without a search warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle."

And multiple rulings have consistently showed that "probable cause" is exactly "the officer's word" - "I smelled pot" (note how many of these cases do they claim to smell pot in the car, and how few do they actually find any pot) or even, "Not staying in lane" (how are you

Oh, and the exception has been extended to trucks, trailers, houseboats, boats and airplanes.

The tl; dr here is that if the police want to search your vehicle in the United States, they will, and anything they find is admissible evidence.

It's generally a good idea to really, really politely say, "I don't consent to a search," but if you're in a car it will probably do you no good and might piss off the officer.
posted by lupus_yonderboy at 8:45 AM on August 6, 2013


The Supreme Court ruled that while it was indisputable that the police were targeting black and brown drivers, this was perfectly legal and could not be grounds for any legal action unless someone could prove that the police did so out of deliberate and intentionally racist motives. Unless, basically, you can get a cop on tape saying that they stop black people more because they really don't like black people, then per the US Supreme Court no amount of proof that the police are systemically targeting black people justifies any legal action to prevent such targeting.

That's the horrific beauty of the system, it's got enough momentum and incentive for abuse that nobody involved needs to have racist motives, they just need to buy into the line that they're the good guys.
posted by jason_steakums at 8:52 AM on August 6, 2013 [3 favorites]


There was a video making the rounds recently where a white male law student was at a traffic stop and was all exercising his rights and even he ended up having to let them search his car even tho he didnt consent. His cell phone was on the seat recording. It was pretty obvious the cop was gonna fuck dude's shit up. In fact, IIRC, the cop tried to open his door and was a bit dumbfounded and pissed it was locked. He was gonna haul that kid's ass out.

So, yeah, i can't imagine any person, especially one of color in this country, actually being able NOT consent to a cop searching their car.

Just thinking about that video makes me anxious all over again.
posted by sio42 at 8:54 AM on August 6, 2013 [2 favorites]


since almost all US currency has trace amounts of cocaine in it

I've long wondered how true this is. I mean, it seems way more likely that the tests for cocaine residue are just really terribly bad with false positives (either in the test itself or in the application). I don't think our best-and-brightest go into cocaine detection or calibration, etc.
posted by allen.spaulding at 8:56 AM on August 6, 2013 [1 favorite]


I forgot to mention: a similar thing had happened to me about ten years ago when I was driving from Austin to Houston.

I'm on TX-71 somewhere around La Grange, going 75 in a 70 zone, when I see a police car on the shoulder on the other side of the road. I slow to about 65, but I otherwise forget about it.

But a couple minutes later, I see the car in my rear view mirror. I instinctively move to the right lane, and so does the cop car, and then the lights come on. I figure they got me for speeding.

The officer comes to the door, and his partner moves to the passenger side window. Officer asks for licence/proof of insurance, and says: "Slower traffic needs to stay to the right."

"Oh, sorry, officer. I thought I was going the speed limit," I sheepishly reply.

He keeps his gaze on my license. "You were going a little under."

Then, after a beat: "Would you step out of the car, please?"

I comply. He walks me to the rear of the vehicle and says: "We smelled marijuana in your car. Mind if we take a look around?"

In the time that it takes me to reply, I think about nine different thoughts, the first of which is that nobody has ever smoked weed in my car. The second thought is that I can't afford a delay; I'm driving to Houston to catch a plane. I reluctantly say: "Um, yeah, that's fine."

He moves me to the very edge of the shoulder, has me take off my shoes, and then pats me down and looks in my shoes for… something. Weed, I guess. His partner (who was the subordinate, clearly, because he was shorter and wasn't wearing a cowboy hat) looks through my car, then opens my nearly-full trunk and halfheartedly moves some stuff around.

As I put my shoes on, the officer writes on a pad. He tears off the top sheet and gives it to me. "This is a warning," he says, still not making eye contact. "It won't go on your record." I thank him — I actually thank him — and get back in the car. It's over.

Now, obviously "smelling weed" is a widespread pretext for a vehicle search. (The warning he wrote me indicated that he had probable cause to search the vehicle, so I assume he'd have done so even if I said no.) Until now I'd figured they were just looking for some weed so they could mess with me, and that it ended when they didn't find anything. I hadn't thought about the civil forfeiture angle. Maybe it ended because they didn't find any cash or hidden compartments in my car. Maybe it ended because I'm white.

Either way, I'm lucky, because the worst that happened is that I was inconvenienced for ten minutes, and in return I got a story to tell incredulous friends. If that chance encounter meant that I'd have to spend two years getting my car back, I'm pretty sure it would've left its mark, and I'd have a far worse opinion of the entire world.
posted by savetheclocktower at 9:01 AM on August 6, 2013 [6 favorites]


> In fact, IIRC, the cop tried to open his door and was a bit dumbfounded and pissed it was locked. He was gonna haul that kid's ass out.

I'm baffled that he didn't in fact haul the kid's ass out. Do you really think that locking your car door is, or even should be, a defense against, say, a breathalyzer request?

Even in an actually free country, rational people would still want the police to be able to "ask people to step out of the car" in order to deal with drunk driving (which, unlike terrorism, is actually a serious problem - killing over three times as many people as 9/11 every year in the US alone despite fairly serious attempts by the police to stop it).
posted by lupus_yonderboy at 9:01 AM on August 6, 2013


since almost all US currency has trace amounts of cocaine in it

I've long wondered how true this is.


Snopes says it's true.
posted by yoink at 9:19 AM on August 6, 2013 [1 favorite]


The difference in Canada is that every part of the process has to be authorized by a judge. That and most of the money goes to victim compensation-based things, which is also good. But I think yeah, having that intermediary is the key part.

I think those who are drawing a stark contrast between Canada and the US are missing the point that civil forfeiture laws in Canada are provincial, not federal. Many Canadian provinces have civil forfeiture laws that are very, very similar to the US ones, and which operate on exactly the same legal rationale (a civil suit against the object itself rather than against its owner). Just as in the US, these can and are done in the absence of any criminal conviction. Here is a pretty good write-up (pdf).
posted by yoink at 9:33 AM on August 6, 2013 [1 favorite]


He wasn't being asked to submit to a breathalyzer. I've been thru similar checkpoints. They just shine a light on you and ask if you've been drinking.

He rolled his window down only a few inches and they asked him to roll it down more. He declined and was within his rights to do so. They weren't trying to breathalyze him.
posted by sio42 at 10:24 AM on August 6, 2013


If you're on facebook, I highly recommend liking the "Police the Police" page. It warrants an FFP as "best of the web" itself, but I'm waiting till I see similar non-facebook resources, no single link facebook posts.
posted by jeffburdges at 10:59 AM on August 6, 2013


In the UK, it appears that the situation may actually be even more bizarre. Under the Proceeds of Crime Act of 2002, Section 5, the UK government can seize property obtained through unlawful conduct that "occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country." In other words, the "crime" doesn't even have to be a crime in the UK.

I think it does have to; you cut off a critical part of the subsection:
(2) Conduct which—
  (a) occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country, and
  (b) if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part,
is also unlawful conduct.
(emphasis mine)
posted by finka at 12:08 PM on August 6, 2013


One of the big things in favor of marijuana legalization is that it takes away cops' favorite magic spell. You just recite the magic words - "I smelled pot" - and presto, probable cause appears from thin air!
posted by Pope Guilty at 12:12 PM on August 6, 2013 [9 favorites]


Another recent article on this subject from ProPublica, focusing on Philadelphia.
posted by rhymes with carrots at 2:33 PM on August 6, 2013


The warrant exception for vehicles is widely misunderstood, as is the reason for declining consent for a search. Some states have stronger protections against searches than others. In Arkansas, to use an example I'm familiar with, they cannot actually search your car without consent except to search the immediate area around the driver for weapons. This means they can't go in your locked glovebox or trunk without consent, barring probable cause. They also cannot detain you to wait for a drug dog. It is not at all uncommon for searches of vehicles to be suppressed there.

If you consent, the search cannot later be challenged in court, so what's the advantage to you? There isn't one.

Of course, they can still take your shit under civil forefeiture laws, but that still beats the hell out of prison.
posted by wierdo at 3:09 PM on August 6, 2013 [1 favorite]


@joe in australia great in theory, but as with congress, lacking any overseeing referee, its so prone to abuse as to be unusable in real life. So Pearson lost its yacht, worth quite a bit at the time and yet less instrumental to the "crime" than a common roachclip. And the supremes signed off on it.

also, antiponysterical!
posted by Fupped Duck at 3:13 PM on August 6, 2013 [1 favorite]


When I was in high school ('98 or '99), we got a tour of the FBI offices in Minneapolis. They showed us goods that they'd seized from "criminals" and emphasized to us that anything that was used to commit a crime or purchased with "drug money" could be taken from us, so we shouldn't commit crimes. Apparently, committing crimes doesn't actually have to come into it.

It was kind of braggy ("Look at all this stuff we took from bad guys!") and, I remember thinking, an unfamiliar emphasis on the punishment aspect, rather than the more moral tone we usually got in Catholic school.

@Pope Guilty: I would think the "I smelled pot!" argument would still work because you're not allowed to drive impaired. I often worry that I'll be pulled over while sweating yesterday's gin and fail a sobriety test due to pure clumsiness.
posted by MsDaniB at 4:50 PM on August 6, 2013


This all brings back hazy childhood memories of an early 1990s NBC cop show called "Nasty Boys." It centered around a bunch of roguish Las Vegas cops who went on commando-style drug raids and made a big deal about them confiscating things like expensive cars and weapons from drug dealers. I was trying to find the pilot online (couldn't) but did find this review from Florida's Sun-Sentinel newspaper.
Based on a real-life Las Vegas anti-narcotics unit, the Nasty Boys are presented as society`s last best hope to win the war against drugs. If this is so, an immediate and unconditional surrender is an enticing alternative.

--

The Nasty Boys code of conduct makes Mayor Richard Daley`s cops at the 1968 Democratic Convention look like the Vatican`s Swiss Guard. Each time the Nasty Boys swing into action, a police riot ensues.

They operate virtually without constraints, especially from anything as trivial as the Bill of Rights; the only person to whom they have to answer seems to be a worse hooligan than they are; and they are allowed to keep whatever booty they can grab, except drugs.

The forceful invasion of a National Guard armory, the plundering of the facility for weapons and the Boys` unilateral decision on what is appropriate to seize are all presented as admirable activities.

Their tactics in raiding suspected drug houses, where no resistance is offered, make home invasion specialists look like Jehovah`s Witness pamphleteers. The key word is ``suspected,`` since these public guardians sheepishly laugh about occasionally hitting the wrong address.

The Nasty Boys do have one appropriate distinction. They wear hoods to conceal their identities -- just like the outlaws they are.
posted by BobbyVan at 11:58 AM on August 7, 2013 [2 favorites]






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