FAIR Act to Reform Asset Seizure Laws

RedTuna

Super Anarchist
4,837
1,243
Texas
One would think that state and federal civil forfeiture would be one subject that both left and right could agree on and fix. But that's probably why. Too many might turn into libertarians.

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
The IRS is into the asset forfeiture game in a big way, sweeping up the cash of many people, accusing about 1/5 of those people with a crime.

http://www.nytimes.com/2014/10/26/us/law-lets-irs-seize-accounts-on-suspicion-no-crime-required.html?_r=0

The NY Times calls the practice "increasingly controversial" but this staple of drug war funding has seemed to me like it should be controversial for decades. Better late than never, I welcome them to the libertarian bandwagon on this one.

Update:

Mrs. Lady's, Carole Hinders' Mexican restaurant in Arnolds Park, does not take credit cards, so she has a lot of cash to deposit. There is nothing illegal about that, although the Bank Secrecy Act requires financial institutions to report deposits of $10,000 or more. Deliberately keeping deposits below that threshold to avoid the reporting requirement is a crime (known as "structuring"), but Hinders was never charged with it. Instead federal prosecutors argued that her bank account had facilitated the crime of structuring, making it subject to civil forfeiture.

Larry Salzman, the Institute for Justice attorney representing Hinders, said she never intended to break the law. "After her deposition, at which it became overwhelmingly clear that Carole was an innocent and hardworking restaurateur, the assistant United States attorney on the case told us that he informed the I.R.S. that they should not go forward with the case," Salzman told The New York Times.
 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
The case of Carole Hinders

For 38 years, Carole Hinders has owned and operated Mrs. Lady’s Mexican Food in Spirit Lake, Iowa. Mrs. Lady’s accepts only cash, which means Carol makes frequent trips to the bank to avoid having large sums of money at the restaurant.

But in August 2013, the federal government used civil forfeiture to seize Carol’s entire bank account—totaling nearly $33,000—even though she did nothing wrong. Federal law requires banks to report cash deposits larger than $10,000. Since her deposits were almost always less than $10,000, they claimed that she was “structuring” her cash bank deposits to evade that reporting requirement. And now they want to keep all of Carol’s money without even charging her with a crime.
So today there was this funny post about the bank account seizure on Facebook:

Gov’t asks our Iowa forfeiture client in a deposition why it was wrong to empty her bank account without warning.
10865954_10153542399679815_4797900367214024881_o.jpg


 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
Senators call on Attorney General to Stop Using the Authority They Gave Him

Leading members of the House and Senate judiciary committees called on the Justice Department on Friday to cut off the flow of hundreds of millions of dollars of proceeds from seized property to police departments around the country.

The congressmen said in a letter to U.S. Attorney General Eric Holder that the Justice Department should stop distributing funds from its “equitable sharing” program, which pools money seized under asset forfeiture laws and shares it with law enforcement agencies across the country.
If they really wanted him to stop using that authority, they would remove it, not ask him to refrain from using it.

They gave it to him in 1984. They can take it away.

...Critics of the program say asset forfeiture creates perverse incentives for police to seize property from citizens, a concern echoed by the lawmakers in Friday’s letter.

“We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities,” the lawmakers wrote.
Returning proceeds to the seizing agencies unquestionably creates perverse incentives. If you don't believe me, watch how they react to talk of removing those incentives.

The main purpose of the Equitable Sharing Program these days is precisely to circumvent state and local asset forfeiture restrictions and keep the drug war gravy train on track. Saying this "might" happen when it's very clearly most of what does happen is just as lame as asking the AG not to use authority that they gave him.

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
Holder Heeds Congress' Cowardly Request

News of the policy change surprised advocates who have for a long time unsuccessfully sought to reverse civil asset forfeiture laws, arguing that they undermine core American values, such as property rights and due process.

...

Holder’s action comes as members of both parties in Congress are working together to craft legislation to overhaul civil asset forfeiture. On Jan. 9, Sens. Charles E. Grassley (R-Iowa) and Mike Lee (R-Utah), and Reps. F. James Sensenbrenner Jr. (R-Wis.) and John Conyers Jr. (D-Mich.) signed a letter calling on Holder to end Equitable Sharing.

Grassley praised Holder’s decision on Friday. “We’re going to have a fairer justice system because of it,” Grassley said. “The rule of law ought to protect innocent people, and civil asset forfeiture hurt a lot of people.”

He said he planned to continue pressing for legislative reforms.

...

Critics of the decision say that depriving departments of the proceeds from civil asset forfeitures will hurt legitimate efforts to fight crime, drug smuggling and terrorism.

Bill Johnson, executive director of the National Association of Police Organizations, said, “There is some grave concern about the possible loss of significant funding while local police and state police are being asked to do more and more each year.”

...

Searing reports by the Orlando Sentinel and other newspapers about abuses spurred Congress to pass the Civil Asset Forfeiture Reform Act in 2000. But a key change — ending the sharing of seizure proceeds between local police and federal agencies — was cut from the bill after fierce opposition from police and prosecutors. Some lawmakers called the sharing of money a “perverse incentive” for overly aggressive police tactics.

...

Holder said seizure adoptions will continue to be employed by local and federal authorities, but only in limited circumstances when public safety is at risk and where local and federal authorities are collaborating in cases clearly involving criminal activity.

Yes, the mostly-libertarian advocates for reform seem pleasantly surprised by this development, judging by articles on IJ and REASON among others, but I'm suspicious that once again, nothing has been done but to centralize and further entrench forfeiture abuses.

I'm glad Grassley is working to take this power away from the Justice Department legislatively, since that's how it should be done, but I doubt he can succeed.

He'll face tough oppo$ition from the National A$$ociation of Police Organization$ and people like Mr. Johnson, to whom I would say that there is grave concern out here in the general public that police will continue to "solve" that underfunding problem by confiscating cash from innocent people.

Just like back in 2000, we're likely to see some small changes, but what will change is really the order and content of phone calls between levels of governments, not the practice of seizing property and giving it to the seizing agencies.

The new rule is that it must be a collaborative effort? That will just mean that instead of local governments making a seizure and then calling the feds and saying, "Hey, wanna adopt this one so we can keep 80% of what we grabbed?" there will be a phone call just prior to any seizure saying, "Hey, wanna collaborate on this one so we can keep 80% of what we are about to grab?"

The procedures involved in policing for profit will change slightly, but the fact that a financial incentive to seize property from innocent people will continue to lead to abuses will not.

 
Last edited by a moderator:

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
The above Washington Post story got some of the facts wrong.

...Eapen Thampy, executive director of Americans for Forfeiture Reform, who argues that "the exception swallows the rule." The Justice Department's own numbers suggest that is pretty close to the truth.

Holder's order applies only to "adoption," which happens when a state or local agency seizes property on its own and then asks the Justice Department to pursue forfeiture under federal law. "Over the last six years," the DOJ says in the press release announcing Holder's new policy, "adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program." By comparison, the program's reports to Congress indicate that "equitable sharing" payments to state and local agencies accounted for about 22 percent of total deposits during those six years. That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder's new policy.

That is not the impression left by The Washington Post, which broke this story on Friday. "Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges," the Post reported, saying the new policy "would eliminate virtually all cash and vehicle seizures made by local and state police from the [equitable sharing] program." The Post did note, deep in the story, that Holder said equitable sharing would continue in cases "where local and federal authorities are collaborating." But it said "most of the money and property taken under Equitable Sharing since 2008...was not seized in collaboration with federal authorities."

That contradicts the Justice Department's numbers, which indicate that the vast majority of equitable sharing comes not from adoption but from "collaboration" of some sort, even if it is limited to federal support for multijurisdictional task forces. A 2012 report from the Government Accountability Office reinforces that point, noting that "adoptions made up about 17 percent of all equitable sharing payments" in 2010.

...
The exception will swallow even more of the rule now that the new policy creates an incentive for "collaboration" instead of "adoption."

 

RedTuna

Super Anarchist
4,837
1,243
Texas
Thanks, Tom. Every article I've read to date focused on equitable sharing. Knew something shady had to be up.

 

nannygovtsucks

Super Anarchist
15,365
4
Today Sen. Rand Paul (R-Ky.) and Rep. Tim Walberg (R-Mich.) reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act, which would revise federal civil forfeiture law to give property owners more protection and reduce the profit incentive that encourages law enforcement agencies to seize assets. "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," Paul said. "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."

http://reason.com/blog/2015/01/27/rand-paul-reintroduces-bill-aimed-at-cur

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
AG Nominee Loretta Lynch Lies To Congress About Asset Forfeiture

Lynch responded that "civil and criminal forfeiture are very important tools of the Department of Justice as well as our state and local counterparts." Speaking directly about civil asset forfeiture, she claimed that such forfeiture is "done pursuant to supervision by a court, it is done pursuant to court order, and I believe the protections are there."

That would come as news to the three brothers of the Hirsch family in Long Island. In 2012, they saw $447,000 of their assets seized by the IRS and the Department of Justice over an allegation that their business Bi-County Distributors, which delivers snack foods to convenience stores, was deliberately depositing cash deposits in amounts smaller than $10,000 in order to avoid IRS reporting requirements.

It was Lynch's office who handled this seizure and Lynch's office who kept the company's money for more than two years without ever setting a court date for the business to attempt to get its money back, nor was anybody in the family ever charged with any crime. The asset-forfeiture-fighting lawyers of the Institute for Justice (IJ) took on the Hirsch family's case, and just earlier this very month, Lynch's office agreed to give them their money back.

So, needless to say, Larry Salzman, the IJ attorney who represented the Hirsch family, did not agree with Lynch's statement that targets of DOJ asset forfeiture have necessary protections.

"Her office in particular seized money under the civil forfeiture laws and held it for more than two and a half years without filing any sort of complaint in court," Salzman says, "without any hearing before a judge. That's the raw facts."

Salzman also points out that it wasn't until IJ sued to force the federal government into court before anything happened, at which point Lynch's office agreed to give the money back.
I guess that's a form of "supervision by a court" and after a couple of years, if the IJ notices your case and sues, the "protections are there" to prevent the government from wrongly keeping half a million of your dollars for a couple of years.

I guess...

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
Seized Cash Returned After Lawsuit

...Trevor Paine was driving near and through that county in November 2013, when Deputy Sheriff Lee Dove pulled him over for speeding. During the stop, Dove brought out a drug dog, which alerted to Paine’s car. Even after searching the car (allegedly without Paine’s consent), Dove never found any drugs. But he did find $11,000 in a lock box.

Jackpot.

Dove seized the cash.

...

Nor was Paine’s case an isolated incident. His settlement means anywhere from 20 to 38 other drivers “may be entitled to a full refund,” according to John Ohlson, the Reno-based attorney who represented Paine. Like Paine, Deputy Dove stopped each of these drivers as they were passing through Humboldt County, before he seized their property. Motorists lost anywhere from $1,000 to nearly $40,000. None of the drivers were ever charged with a crime.

...

The Nevada Attorney General’s Office is reportedly investigating Humboldt County’s cash seizures, while the new county sheriff has suspended the county’s interdiction stops. But Deputy Dove is still on the force; Sheriff Mike Allen declined to say if Dove is on active duty.
If I were Deputy Dove, that last paragraph would cause a severe WTF reaction. The system is set up to create incentives for what he did. His superiors probably told him to do what he did. He was probably rewarded and respected for bringing in those seizures. And now they won't admit whether he's working?

I remember a time when they would have said, "You better believe he's working every day and drug criminals should avoid our area!" I'm glad those days are gone.

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
ATF, always noted for competence, has done such a great job with their temporary forfeiture power that Eric Holder decided to make it permanent

A quick glance at the Federal Register (Vol. 80, No. 37, p. 9987-88) today reveals that Attorney General Eric Holder, who earned cautious praise last month for a small reform to the federal equitable sharing program, has now delegated authority to the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to seize and “administratively forfeit” property involved in suspected drug offenses. Holder temporarily delegated this authority to the ATF on a trial basis in 2013, and today made the delegation permanent while lauding the ATF for seizing more than $19.3 million from Americans during the trial period.

Historically, when the ATF uncovered contraband subject to forfeiture under drug statutes, it was required to either refer the property to the DEA for administrative forfeiture proceedings or to a U.S. Attorney in order to initiate a judicial forfeiture action. Under today’s change, the ATF will now be authorized to seize property related to alleged drug offenses and initiate administrative forfeiture proceedings all on its own.

The DOJ claims this rule change doesn’t affect individual rights (and was thus exempt from the notice and comment requirements of the Administrative Procedure Act) and that the change is simply an effort to streamline the federal government’s forfeiture process....
Some of us think that seizing millions of dollars from people who are not charged with crimes does affect individual rights and that this process should stop instead of being streamlined.

 

Pertinacious Tom

Importunate Member
62,140
1,899
Punta Gorda FL
The Seizure Police in South Gate, CA

That one could go in the Photography Is Not A Crime thread, as it's partly about a citizen recording a cop smashing a phone.

Disturbing as that is, it's worse that South Gate is budgeting for forfeitures. They have to get out there and seize property from people who are often not even accused of a crime or their budget doesn't add up. This is one of the craziest possible incentives we could give police forces and only makes sense if you think the drug war can and should be somehow "won." It can't and shouldn't.

 




Top