Asset forfeiture: Highway robbery, government style - The Daily Progress: Guest Columnists

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Asset forfeiture: Highway robbery, government style

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Posted: Sunday, March 31, 2013 12:15 am

Suggested hed: Governmental highway robbery: Asset forfeiture and the pillaging of the American people

 

 

“This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting.”

— John Rekowski, public defender

 

Long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting. To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights. You’re nothing more than a serf or a slave.

The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty or property, without due process of law. Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.

The latest governmental scheme to deprive Americans of their liberties — namely, the right to property — is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then — and here’s the kicker — whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure.

For example, the federal government recently attempted to confiscate Russell Caswell’s family-owned motel in Tewksbury, Mass., insisting that because a small percentage of the motel’s guests had been arrested for drug crimes — 15 out of 200,000 visitors in a 14-year span — the motel was a dangerous property. As Reason reports:

“This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an ‘equitable sharing’ deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.”

Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate. One couple in Anaheim, Calif., is presently battling to retain ownership of their $1.5 million office building after the U.S. Drug Enforcement Administration filed an asset-forfeiture lawsuit against them because one of their tenants allegedly sold $37 in medical marijuana to an undercover agent.

Some states are actually considering expanding the use of asset forfeiture laws to include petty misdemeanors. This would mean that property could be seized in cases of minor crimes such as harassment, possession of small amounts of marijuana and trespassing in a public park after dark.

As the Institute for Justice points out:

“Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets — all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.”

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent.

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the war on drugs. By asserting that someone’s personal property, a building or a large of amount of cash for example, is tied to an illegal activity, the government — usually, the police — then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was obtained legally.

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits. For example, under a federal equitable sharing program, police turn cases over to federal agents who process seizures and then return 80 percent of the proceeds to the police.

Asset forfeitures can certainly be lucrative for cash-strapped agencies and states. In the fiscal year ending September 2012, the federal government seized $4.2 billion in assets, a dramatic increase from the $1.7 billion seized the year before. Between 2004 and 2008, police in Jim Wells County, Texas, seized more than $1.5 million. Often, these governmental property grabs take the form of highway robbery (literally), where police officers extract money, jewelry and other property from unsuspecting motorists during routine traffic stops. As Mother Jones quips, “Forfeiture corridors are the new speed traps.” States such as Texas, Tennessee and Indiana are among the worst offenders.

In typical fashion, these police traps tend to prey on minorities and the poor, as well as undocumented immigrants and individuals who happen to have large amounts of cash on hand, even for lawful reasons. One such person is Jerome Chennault, who fell prey to Madison County, Illinois’ forfeiture corridor in September 2010. En route to Nevada after a visit with his son, Chennault was pulled over by police for allegedly following another car too closely. When police asked to sweep Chennault’s car with a drug dog, Chennault obliged, believing that he had done nothing wrong and had nothing to hide and completely unaware that he had fallen into a forfeiture trap.

During the search, the drug dog alerted on a black bag in the back seat of the car that contained about $22,000 in cash. The money, Chennault explained, was intended for a down payment on a home. The dog did not find any drugs in the car, nor was there any evidence of criminal activity. However, instead of letting Chennault go on his way with a traffic citation, the police confiscated the cash, claiming that since the drug dog alerted to it, it must have been used in the commission of a drug crime. Chennault challenged the seizure in court, after months spent traveling to and from Illinois on his own dime, and eventually succeeded in having his money returned, although the state refused to compensate him for his legal and travel expenses.

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing. Between 2006 and 2008, for instance, Tenaha police seized roughly $3 million.

As Roderick Daniels discovered, it doesn’t take much to get pulled over in a forfeiture corridor like Tenaha’s. Daniels was stopped in October 2007 for allegedly traveling 37 mph in a 35 mph zone. He was ordered to hand over his jewelry and the $8,500 in cash he had with him to purchase a new car. When he resisted, he was taken to jail, threatened with money-laundering charges and “persuaded” to sign a waiver forfeiting his property in order to avoid the charges.

In an even more egregious case, Jennifer Boatright and Ron Henderson, an interracial couple travelling through Tenaha, were forced to forfeit the $6,000 cash they had with them to buy another car when police threatened to turn their young children over to Child Protective Services. Another traveler, Maryland resident Amanee Busbee, was also threatened with losing her child to CPS after police stopped her, her fiancé and his business partner when they were en route to Houston with $50,000 to complete the purchase of a restaurant. Boatright and Busbee were eventually able to reclaim their money after mounting legal challenges.

In an age in which the actions of the police — militarized extensions of the government — are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors.

 

John Whitehead is president and founder of the Albemarle County-based Rutherford Institute, a civil-liberties organization. He can be reached at johnw@rutherford.org.

 

 

 

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