FAIR Act to Reform Asset Seizure Laws

Pertinacious Tom

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Some won't like it because of the source, but changing the incentives involved in seizing property is a good idea.

http://reason.com/blog/2014/07/24/rand-paul-wants-to-make-it-harder-for-th

Sen. Rand Paul (R-Ky.) today announced he has introduced the FAIR (Fifth Amendment Integrity Restoration) Act to add a bit more due process to the system by which federal prosecutors seize citizens' assets, often before ever proving they've broken the law. From his office's announcement:

The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General's Asset Forfeiture Fund to the Treasury's General Fund.

"The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime. The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime," Sen. Paul said.

Looking over the legislation, the "clear and convincing evidence" replaces "a preponderance of evidence" threshold for the feds to attempt to force asset forfeitures. This is a higher legal burden of proof, requiring that "a party must prove that it is substantially more likely than not that it is true." It's still obviously not as good as requiring evidence of the crime beyond a reasonable doubt or for the federal government to actually convict somebody of a crime first, but baby steps, I guess.

The Daily Show just recently presented a segment on the "Highway-Robbing Highway Patrolmen," aptly illustrating how the twisted financial incentives from asset forfeitures turn law enforcement officers into thieves. Our lengthy archives of horrifying asset forfeiture stories can be skimmed through here.
 

Mark K

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The mayor's of these Texas towns are in on it too. Legalized piracy. Allows them to lower the taxes on the locals. Is this a great country or what?

 

Pertinacious Tom

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The mayor's of these Texas towns are in on it too. Legalized piracy. Allows them to lower the taxes on the locals. Is this a great country or what?
Texas is hardly alone. Federal, state, and local law enforcement agencies are funded by forfeitures, and all they have to do is allege a crime. The rules haven't changed much since the famous yacht Monkey Business was confiscated because a crew member had some marijuana residue aboard.

Years ago, Bob Barr and Bill Clinton worked together to try to stop some of this activity, but cash cows are hard to kill.

I'm glad to see Rand Paul picking up where they left off. If we can take some of the profit incentive out of the drug war it will be easier to develop sensible drug policies.

 
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Pertinacious Tom

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Government Siezes Woman's Savings

A US Citizen decided to sell her house and move in with her daughter in the Phillipines. She wired some of her money prior to leaving, but apparently didn't trust bankers and their government regulators with all of it.

The rest of the money she carried in cash scattered throughout her luggage and on her person, figuring it would be safer from thieves (both with and without badges) that way.

She figured wrong.

...She believed it would be safer to keep it hidden. Safe from thieves or government agents; whichever appeared first. But her efforts to protect her cash failed.

After finding wads of cash in her wallets and carry-on bag, the agents went so far as to remove the woman’s brassiere and girdle to find the rest. In total they seized $40,977 from the woman, which were proceeds from the recent sale of her $120,000 home.

“She stated that she did not wire the proceeds to the Philippines this time because she thought it was safer to carry the money,” according to the government’s version of events.

The federal agents decided to keep the money using a tactic known as civil asset forfeiture. The government let her go — minus her cash — without any criminal charges.

She’ll now have to fight in court to have any hope of getting her savings returned. Assistant U.S. Attorney Gjon Juncaj has already filed a “Complaint for Forfeiture” on behalf of the U.S. Department of Justice. The government’s intent is to permanently keep her money, just because it can.

The theft has been formalized in the Code of Federal Regulations. Americans are not allowed to freely move their money without federal government’s knowledge. Customs enforcers demand that sums of cash over $10,000 be declared with the Treasury’s Financial Crimes Enforcement Network (FinCEN)....
If she committed a crime, she should be charged.

This convenient scam that says the cash is guilty and must therefore go to the seizing agency unless the owner proves the cash innocent must stop.

 

Happy Jack

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Government Siezes Woman's Savings

A US Citizen decided to sell her house and move in with her daughter in the Phillipines. She wired some of her money prior to leaving, but apparently didn't trust bankers and their government regulators with all of it.

The rest of the money she carried in cash scattered throughout her luggage and on her person, figuring it would be safer from thieves (both with and without badges) that way.

She figured wrong.

...She believed it would be safer to keep it hidden. Safe from thieves or government agents; whichever appeared first. But her efforts to protect her cash failed.

After finding wads of cash in her wallets and carry-on bag, the agents went so far as to remove the woman’s brassiere and girdle to find the rest. In total they seized $40,977 from the woman, which were proceeds from the recent sale of her $120,000 home.

“She stated that she did not wire the proceeds to the Philippines this time because she thought it was safer to carry the money,” according to the government’s version of events.

The federal agents decided to keep the money using a tactic known as civil asset forfeiture. The government let her go — minus her cash — without any criminal charges.

She’ll now have to fight in court to have any hope of getting her savings returned. Assistant U.S. Attorney Gjon Juncaj has already filed a “Complaint for Forfeiture” on behalf of the U.S. Department of Justice. The government’s intent is to permanently keep her money, just because it can.

The theft has been formalized in the Code of Federal Regulations. Americans are not allowed to freely move their money without federal government’s knowledge. Customs enforcers demand that sums of cash over $10,000 be declared with the Treasury’s Financial Crimes Enforcement Network (FinCEN)....
If she committed a crime, she should be charged.

This convenient scam that says the cash is guilty and must therefore go to the seizing agency unless the owner proves the cash innocent must stop.
Bad example her issue was not the source of the funds but the failure to declare them. In these cases the mere presence of the money is, ipso facto, proof of guilt.

A better example would be the day I purchases a certain towable asset in Tampa. Given that many sellers are reluctant to accept checks, such sales are typically cash and often large sums. Had I been stopped by the Florida FHP for some infraction and they discovered the cash they could have arbitrarily declared it drug money and walked off with it. Something they do regularly.

That is what the FAIR act is aimed at. I don't think the lady you described is going to be covered by it.

 

Pertinacious Tom

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The FAIR Act would still cover where her money goes: into general funds instead of to the seizing agency. Incentives matter.

When people like me who believe it should not be a crime to travel with our money, and who also believe that it's only a crime because of the idiotic war on (some) drugs, complain about these laws and try to get them changed, do you know who the political opposition is?

I do. The people with the profit incentive become quite motivated when you threaten their cash cow.

 

Pertinacious Tom

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I"m the furthest thing imaginable, from a libertarian, but on this issue, I am in agreement with Rand Paul... civil forfeitures without due process ought to be considered unconstitutional.
Then you're not that far, at least on this issue, which as you can see is pretty well ignored by the partisans here from both halves of the Duopoly.

My take: Republicans won't do anything that will weaken the powers accumulated for the sacred Drug War and Democrats are not particularly interested in property rights issues. Sometimes, it takes a libertarian.

 

Pertinacious Tom

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5 Issues On Which Libertarians Give A Shit Are On Your Side

LMAO at editors with taste. Posting that one, I noticed the URL, which is automagically generated using the author's title, ended in "libertarians-give-a-sh" while the article title that actually was used for publication is a bit more friendly and less profane.

My guess: 4 out of 5 apply to more than one person here who considers himself the furthest thing imaginable from a libertarian.

 

Pertinacious Tom

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Medical Marijuana Patient Has Half Million Seized

...Oates' doctor had recommended medicinal marijuana for Oates' chronic back pain, so he attained a medical marijuana card with cultivation rights. Dispensaries were still few and far between at the time, and Oates didn't trust Craigslist for his medicine.

"I felt like the next alternative was to grow it ourselves," says Oates. Oates met a few other patients who shared concerns about underground marijuana channels, and they decided to start growing together. Oates had their entire supply during the raid, which ended up being more than the permitted amount that he could grow with cultivation rights. He pled guilty to possessing under two pounds of marijuana.

But the conviction ended up being the smallest price that Oates had to pay. Goodyear Police Department brought Oates' case to the Attorney General, who consequently slapped Oates with over $455,000 in civil asset forfeiture. Civil asset forfeiture is when the government can seize property and finances that they suspect have a connection to illicit activity. However, they sue the property instead of the person, so there doesn't have to be a related conviction.

"That's what they're claiming, is that the market value of the sales that he allegedly made was $455,000," says Oates' attorney John Moore. "They don't have any proof or any evidence that the property that they are trying to forfeit is related to the crime of his possession of marijuana for sale."

Oates says that between property taken, bank accounts seized, and legal fees, he has actually lost over $600,000, but that he would "rather spend every dollar on an attorney than just let [law enforcement] have it."

...

Moore adds that Arizona has a direct incentive to utilize asset forfeiture because unlike other states, Arizona law enforcement gets to keep seized funds for their own departments.

"Their focus is on raising revenues instead of actual law enforcement itself," says Moore. "Instead of going after real drug dealers who are transporting across state lines or criminal gangs that are creating great crime and personal injury to people, they're going after an individual because they know he had funds in his bank account."
Arizona is not alone. The profit incentive to seize assets exists in other places. We should get rid of that at the very least, if not go all the way and require actual proof of guilt before property is confiscated.

 

plchacker

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Government Siezes Woman's Savings

A US Citizen decided to sell her house and move in with her daughter in the Phillipines. She wired some of her money prior to leaving, but apparently didn't trust bankers and their government regulators with all of it.

The rest of the money she carried in cash scattered throughout her luggage and on her person, figuring it would be safer from thieves (both with and without badges) that way.

She figured wrong.

...She believed it would be safer to keep it hidden. Safe from thieves or government agents; whichever appeared first. But her efforts to protect her cash failed.

After finding wads of cash in her wallets and carry-on bag, the agents went so far as to remove the woman’s brassiere and girdle to find the rest. In total they seized $40,977 from the woman, which were proceeds from the recent sale of her $120,000 home.

“She stated that she did not wire the proceeds to the Philippines this time because she thought it was safer to carry the money,” according to the government’s version of events.

The federal agents decided to keep the money using a tactic known as civil asset forfeiture. The government let her go — minus her cash — without any criminal charges.

She’ll now have to fight in court to have any hope of getting her savings returned. Assistant U.S. Attorney Gjon Juncaj has already filed a “Complaint for Forfeiture” on behalf of the U.S. Department of Justice. The government’s intent is to permanently keep her money, just because it can.

The theft has been formalized in the Code of Federal Regulations. Americans are not allowed to freely move their money without federal government’s knowledge. Customs enforcers demand that sums of cash over $10,000 be declared with the Treasury’s Financial Crimes Enforcement Network (FinCEN)....
If she committed a crime, she should be charged.

This convenient scam that says the cash is guilty and must therefore go to the seizing agency unless the owner proves the cash innocent must stop.
She should have bought gold, then sold it on the market after the trip. Easier to hide, takes up less space and will not set off the dogs.

She chose not to declare the cash, so I can see why she had to forfeit the cash. If she did want to hide the money, converting it would have been smart. Nobody would have thought twice about several heavy gold chains hanging around her neck, wrists and ankles and rings on her fingers and a few coins in her pocket. All hidden in plain sight.

 

Pertinacious Tom

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I think the law requiring a declaration of cash makes no sense because, as you note, you can carry the same amount of wealth on your person in different forms.

Thing is, she appeared to want to conceal her wealth from anyone and everyone at her destination, so wearing it around would kind of defeat her purpose.

 

Pertinacious Tom

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Washington Post did a good three part series on policing for profit and the private firms that help to train police to seek money seizures. There is a whole industry in training cops to seize cash, and informal competition among cops to see who can seize the most. This is the kind of incentive that should not exist in law enforcement and that the FAIR Act would fix, if drug warriors would ever let it.

Stop and Seize

Desert Snow and Black Asphalt

Some Get Their Money Back, usually too late and at great expense.

 

Regatta Dog

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Washington Post did a good three part series on policing for profit and the private firms that help to train police to seek money seizures. There is a whole industry in training cops to seize cash, and informal competition among cops to see who can seize the most. This is the kind of incentive that should not exist in law enforcement and that the FAIR Act would fix, if drug warriors would ever let it.

Stop and Seize

Desert Snow and Black Asphalt

Some Get Their Money Back, usually too late and at great expense.
Great series by the Washington Post. I read the hard copy while visiting my brother over the weekend. The Desert Snow article made me cringe.

Osama Bin Laden is still winning.

 

Pertinacious Tom

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Results of the profit incentive in policing:

Police, Prosecutors, conspire to forge document justifying seizure of cash

In the usual “upside-down world of civil forfeiture,” police and prosecutors already have all the advantages. They can seize and keep cash or property that they merely suspect is involved with criminal activity. And if the owner objects, then he or she has the burden of going to court and proving the property’s innocence.

In Baltimore, however, these legal advantages for the police may not have been enough for one federal prosecutor’s attempt to take Samantha Banks’ cash. Ms. Banks’ case, as the Baltimore City Paper explains, began when a TSA agent found $122,640 in cash in her husband’s bag. After DEA agents seized the cash, a K-9 officer with the Maryland Transportation Authority Police (MTAP), Joseph Lambert, had his dog sniff it.

Unsurprisingly, as studies show about one third to ninety percent of all U.S. currency is tainted by cocaine, the dog alerted to the presence of narcotics.

Although the government found no drugs and did not charge Ms. Banks or her husband with any crime—she claimed that she and her husband are real estate investors and the money was for a real estate purchase—the U.S. Attorney’s Office decided it had probable cause to believe the money was connected to illegal activity and filed for forfeiture. After all, what did they have to lose? If the government successfully forfeited Ms. Banks’ cash, then the U.S. Attorney’s Office, the DEA, and—through a loophole known as “equitable sharing”—the MTAP could have split the $122,640 amongst themselves.

What came next, even in the context of civil forfeiture, was surprising.

According to a deposition given by the head trainer for the MTAP K-9 team, the police could not find the drug dog’s certification to support the forfeiture action. Instead, an officer—who claims he was acting under a “direct order” from officer Lambert—created a certificate on his home computer and the Assistant U.S. Attorney (AUSA), Stefan Cassella, passed it off to Ms. Banks’ attorney as “a reproduction of the original certificate.”
Here is how the head trainer for the MTAP K-9 team describes the document’s authenticity:

Q. Okay. Is this an actual authentic certification?
A. No.
Q. Is this a fraudulent certification?
A. I believe so. . .
 
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