The U.S. legal system continues to show two sides of its monstrously large head. One is the “Justice” received by most Americas if they are unfortunate enough to be caught up in the web of laws holding so many of your civil liberties hostage and the other is “Just Us”, generally reserved for those with pockets deep enough to put money into the system by way of its most invidious operators – the lawyers. For several decades now the system has been hell bent on losing whatever vestiges of respect they have from the people and “civil forfeitures: which are anything but “civil” are perhaps one of the most egregious examples of how “Justice” is more concerned with money than with fundamentally fairness, It is now the law that in most states in America, the police can seize your stuff, including money, without convicting you of a crime.
According to Tampa Attorney Jason Sammis, who specializes in fighting Florida seizures, “forfeiture actions are common throughout the state, including Hillsborough County, Pinellas County, Sarasota County, Sumter Counter, Polk County, and Pasco County.”
Seizures in Florida are governed by Section 932.701-706 and is known as the, "Florida Contraband Forfeiture Act. "
Under this statute, contraband like controlled substances, drug paraphernalia, and money that has some connection to a criminal drug crime can be seized The contraband can also include anything used in the commission of a felony. On the surface this seems reasonable, but in practice it has become frequently abused and people are, in effect, becoming victims of the very law enforcement that is supposed to be protecting them.
Clearly illustrating this problem is the way law enforcement attempts to circumvent a person’s right to an adversarial preliminary hearing
In several documented Florida cases, police have pressured “suspects” into signing a “Settlement Agreement and Release" often while the person is in handcuffs and surrounded by armed law enforcement officers. This settlement “agreement” purports to assign all rights and interest in the suspects’ property to the investigating city or county agency in the Sunshine State.
In effect it’s a waiver of rights under duress that says on its face, "I hereby waive my rights to have the settlement reviewed by a judge, mediator, or arbitrator per Florida Statute 932.704(7). It’s easy to understand why most people sign – they just want those cuffs off.
The problem is not limited to Florida, it is nationwide threat to the integrity of our justice system. And despite the occasional attempt at reform like SB 1534 proposed by Sen. Jeff Brandes in 2014, seizures continue to grow in scope and power with every passing year.
Florida law enforcement agencies received $16,143,203 in federal payments in fiscal year 2014 alone. And under the rules of the federal program, this money must be spent by the agencies themselves, regardless of state laws to the contrary.
Florida is one of the few states where a total was available and many other states do not track or record seizures in any central database, which makes it difficult to make assessments. Nevertheless, according to the Washington Post, nationwide federal asset forfeiture in 2014 “accounted for over $5 billion going into Justice and Treasury Department coffers.” That amount was contrasted with official statistics that showed the amount stolen from citizens by burglars during that same year was a mere $3.5 billion.
In the states that fully allow these “civil forfeitures”, officers can seize someone's property without proving the person was guilty of any crime; they just need to “establish” sufficient probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. The problem is that the evidentiary threshold for establishing this probable cause is far less than what is required to prove a crime and also because law enforcement can retain the value of this property — be it cash, cars, guns, or something else — as profit. They do this either through state programs or under a federal program known as Equitable Sharing, which lets local and state police keep up to 80 percent of the value of what they seize as money for their departments.
So police in most jurisdictions can not only can seize people's personal property without proving an underlying crime, but also have a financial incentive to find and seize the belongings of citizens. Police power is necessary to maintain public order and no one questions seizing property as evidence but making any use of legal force a business undermines public trust in law enforcement. .
To be fair, there are some states where legislatures have passed measures to limit civil forfeitures, such as California and New Mexico where police can't keep that property without a criminal conviction usually under state law.
But like our laws on marijuana, the limits on civil forfeiture vary greatly from state to state — but there is a loophole under federal law.
This minority of states limit most or all forfeiture cases in different ways.
In New Mexico and North Carolina courts must first convict a defendant of a crime before the same judge or jury can consider whether seized property can be retained by the state. In Minnesota and Montana, however, a suspect must first be convicted of a crime in court before the seized property can be absorbed by the state and then only through separate litigation in a civil court. California requires a conviction for forfeiture — but only for financial seizures valued up to $25,000 including vehicles or real estate.
These limitations don't affect police from seizing property with probable cause, cops can still seize property to hold as evidence in a trial or hearing.
But by not allowing unlimited seizures without proof of a crime, it does take the government out of the “business” of law and keeps them focused where they should be – on preventing and solving crime. And by requiring a showing that a suspect was actually involved in a crime, limiting civil forfeitures deter future unfounded seizures for profit since police know they'll need to ultimately prove a crime was committed.
Unfortunately, even when state lawmakers limit seizures, police in these states can still use federal law for civil forfeitures.
Lee McGrath, an attorney with the Institute for Justice, a national nonprofit that opposes civil forfeiture, has said that police in most states with restrictions on civil forfeiture “can still work with federal law enforcement officials to take people's property without charging them with a crime.” Only New Mexico and Nebraska have laws in place that directly limit local and state police departments' ability to collaborate with the federal government in forfeiture cases.
One way that a few states have addressed the issue is to keep police agencies from absorbing proceeds from forfeitures into their own budgets and instead funnel the money into the general budget. This does help remove a direct personal financial incentive for police to take and keep someone's property but since legislatures often redirect money back to the agencies from the general fund, many critics of this approach say as a practical matter it just doesn’t work well.
And then there’s a big “loophole” in federal law; the program known as Equitable Sharing: If local and state cops can find a way to work through the federal forfeiture program, they can still conduct forfeitures, and their departments can retain as much as 80 percent of the proceeds — regardless of what state law says.
Despite this loophole the Institute for Justice and other watchdog groups have praised states for taking steps to limit civil forfeiture. Nevertheless horror stories from every day people about abuses in forfeitures continue to pile up. The outcry became so great that the Washington Post did an award winning expose of civil forfeiture abuse. By amassing a huge amount of empirical evidence the Post was able to show the extent of police abuse using these laws so poignantly that the Obama administration ordered federal authorities to “back down” on the use of civil forfeiture seizures and for a time it worked, but recently, Obama himself backed down and seizures are once again mounting.
The civil forfeiture reforms came in response to criticisms — and stories of police abuse. There have been numerous reports by the media about systemic abuse of civil forfeiture.” USA Today described it as "an increasingly common—and utterly outrageous—practice that can amount to legalized theft by police.”
Supporters of the civil forfeiture laws say people can get their property back through court challenges, but these cases are very expensive and take months or years. And while being in court may be business as usual for a prosecutor, defendants deprived of their property are out of their element and have to take time off work, sometimes travel long distances to courts, spend considerable money on – you guessed it – lawyers in the system and in the end still lose all or a portion of what was seized. It is a rigged game.
The Washington Post's Michael Sallah, Robert O'Harrow, and Steven Rich uncovered numerous stories about people pulled over while driving with cash and had their money taken despite any proof that they had committed a crime. The suspects in these cases were only able to get their property back after long, costly court battles and only then when they proved they weren't guilty of anything. Certainly this does not comport with constitutional standards that a person is innocent until proven guilty. It shifts the burden of proof in favor of a government that already has the upper hand in terms of resources and time.
One of the most egregious law enforcement tools is the “Black Ashphalt.” Electronic Networking & Notification System. According to the Post – and their report was incredibly well documented – “This private intelligence network enables police nationwide to share detailed reports about American motorists — criminals and the innocent alike — including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop.”
The Post did years of research on these highway law enforcement authorities and came to the conclusion that, “A thriving subculture of road officers on the network now competes to see who can seize the most cash and contraband, describing their exploits in the network’s chat rooms and sharing “trophy shots” of money and drugs. “
The practice had its roots in the height of the drug war more than three decades ago, but now its abuses have become the subject of journalistic exposés like the Posts’ and in congressional hearings. But seizures have grown far beyond a tool utilized for drug and terrorism enforcement, morphing into an industry for many police departments. Indeed, some police departments have joined forces politically with local courts to advocate highway interdiction and seizures as a legitimate way of raising revenue for cash-strapped municipalities.
“Those laws were meant to take a guy out for selling $1 million in cocaine or who was trying to launder large amounts of money,” said Mark Overton, the police chief in Bal Harbour, Fla., who once oversaw a federal drug task force in South Florida. “It was never meant for a street cop to take a few thousand dollars from a driver by the side of the road.”
There are far too many cases to list them all but here are just a few researched and reported by the Post:
A 55-year-old Chinese American restaurateur from Georgia was pulled over for minor speeding on Interstate 10 in Alabama and detained for nearly two hours. He was carrying $75,000 raised from relatives to buy a Chinese restaurant in Lake Charles, La. He got back his money 10 months later but only after spending thousands of dollars on a lawyer and losing out on the restaurant deal.
A 40-year-old Hispanic carpenter from New Jersey was stopped on Interstate 95 in Virginia for having tinted windows. Police said he appeared nervous and consented to a search. They took $18,000 that he said was meant to buy a used car. He had to hire a lawyer to get back his money.
Mandrel Stuart, a 35-year-old African American owner of a small barbecue restaurant in Staunton, Va., was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on Interstate 66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back but lost his business because he didn’t have the cash to pay his overhead.
“I paid taxes on that money. I worked for that money,” Stuart said. “Why should I give them my money?”
Wikipedia also lists a number of cases including one in Florida, “In May 2010 a couple was driving from New York to Florida and they were stopped by police because of a cracked windshield. During questioning, the officer decided that $32,000 cash in the van was "probably involved in criminal or drug-related activity", seized it, shared it with federal authorities under equitable sharing The victim hired a lawyer to get back the seized money who urged settling for half of the seized amount, and after the lawyer's fees, the victim got back only $7,000.”
Another well publicized case was that of college student Charles Clarke. In 2014 police took his life savings of $11,000 claiming they “smelled” marijuana on Clarke's bags — but they never proved the money was linked to any crime nor did they find any drugs. Making the matter worse, Clarke was able to latter provide documents that showed some of the money came from past jobs and government benefits. The Institute for Justice, which is keeping close tabs on Clarke's case, recently estimated that 13 different police agencies are now seeking a cut of Clarke's money.
"It's ridiculous. I think it needs to change," Clarke told reporters last year. "I don't think the cops should be allowed to take somebody's money if they haven't committed any crime. We're treating innocent people like criminals," he added.