FAIR Act to Reform Asset Seizure Laws

Pertinacious Tom

Super Anarchist
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NYPD Can't Account For Seized Property

Their antiquated 2012 computer system would crash if they tried!

At the hearing, the NYPD claimed that it only legally forfeited $11,653 in currency last year — that is, gone to court and actually made a case as to why the NYPD should be taking this money. The NYPD then went on to explain that an annual accounting of the full amount of money the department had seized, but not pursued civil forfeiture, would be technologically impossible. NYPD officials referred to the Property and Evidence Tracking System (PETS) as antiquated, even though it was only put in place in 2012. At the time, the NYPD was proud enough of the new tracking system that it entered it in technology competitions and claimed that it provided “the cradle-to-grave life cycle of property and evidence... visible upon demand."

In the accounting summaries which the Bronx Defenders submitted as part of its testimony, the NYPD reports that as of December 2013, its property clerk had almost $69 million in seized cash on hand. This amount had been carried over from previous years, showing an annual accumulation of seized cash that has reached an enormous amount. The documents also show that each month, the five property clerk’s offices across the city took in tens of thousands of dollars in cash, ultimately generating over $6 million in revenue for the department. The report that the NYPD released appears to have been generated through the same use of their database that the department now claims is technologically impossible.
 

Pertinacious Tom

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You didn't say "Simon says"

The Platts soon received a letter in the mail from the Navajo County Attorney's Office informing them they only had 30 days to send a petition to the county attorney or file a challenge in court. If they did neither, their car would be summarily forfeited.

Daunted by the likely attorney fees, the Platts sent a handwritten petition under the deadline to the attorney's office. However, the Navajo County Attorney's Office filed an application in county court for an uncontested forfeiture of the car, declaring the Platts' petition "null and void." According to the Institute for Justice, the attorney's office never submitted the Platts' petition to the court or explained why it was rejected.

Responding to the Platts' lawsuit, the Navajo County Attorney's Office then filed a motion arguing their petition was invalid because they had neglected to include the words "under penalty of perjury" with their signatures.

"The implication of the State's argument is breathtaking," the Institute for Justice shot back in a counter-motion. "The State is arguing that this Court cannot review the legality of the State's actions here—actions taken under a profit incentive to take property for forfeiture—and the Court must ignore Terry and Ria's attempts to invoke judicial review of the State's decision to ignore Terry and Ria's June 28 pro se Petition."

The Institute for Justice also argues the small amount of marijuana found in the Platts' car was well below the two-pound threshold for a drug felony in Arizona, making the seizure of the cash and car illegal in the first place.
So if you forget (or don't know) to put the magic words on your petition, the response is to simply ignore it and keep the car? No opportunity to correct it?

 

Pertinacious Tom

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A Step Forward In California

The bill is back this session and a newly announced compromise has law enforcement officials finally dropping their objections. It appears to be a pretty good compromise when you look at the worst of the law enforcement abuses. Police say they use civil asset forfeiture to target big drug dealers, but the reality is that many asset forfeitures are for smaller amounts in the thousands, often from poor people who cannot afford the costs to fight back. This compromise will require that police will have to get convictions for underlying crimes and prove that the property was connected to crime—but only for total assets that are valued at less than $40,000.

For assets over $40,000 the looser evidentiary standard of "clear and convincing evidence" applies and criminal conviction will not be required. This still seems clear a violation of the property rights and due process of people who pass the threshold, but it is nevertheless still an improvement on what currently exists.

As for the ability for law enforcement agencies to bypass the state and go to the feds, the same rules apply. In order to seize property under $40,000, even when participating in a joint investigation with a federal agency, an underlying criminal conviction will be required. It does not forbid law enforcement agencies from participating in joint operations with federal law enforcement or even using the federal "equitable sharing" asset forfeiture program; it requires that there be an underlying conviction before they can receive payment from the federal program for property valued at less than $40,000.
I think a criminal conviction should be required in every case but at least requiring it sometimes is a bit better than never requiring it.
That's not working out so well.

San Diego Police Seize Family's Bank Accounts

"Just imagine what it's like when you're a 57-year-old business man with three kids and a house, and supporting elderly parents, and all the sudden all your money is gone," Slatic says in an interview with Reason. "It's disappeared. Your car payment bounces, your insurance doesn't go through."


The Slatics' crimes? None. Or at least, the San Diego District Attorney's Office hasn't charged them with any in the nine months since it seized their accounts.

...

Slatic says he worked with the city to obtain all the necessary permits for his business, which refined marijuana oils for use in vaporizers and topical ointments. He is also politically involved in California's marijuana regulations and served on the boards of the Marijuana Policy Project and the California Cannabis Industry Association

"I had heard of [asset forfeiture] before but naively thought it was for people who don't pay their taxes or some other tawdry thing, not people who create jobs and pay taxes and are involved in the political process," Slatic says. "I didn't consider myself to be a potential target, but I was wrong."

...

Earlier this year, the California legislature also passed an asset forfeiture reform bill that requires a criminal conviction for prosecutors to seize under $40,000 from someone, which would have protected Slatic's wife and daughters from having their bank accounts frozen. The law goes into effect in January.

As it so happens, Slatic worked to get that legislation passed. He says the $40,000 cap was added to the bill at the last minute at the insistence of law enforcement groups, who said it was needed to preserve their abilities to go after cartels and large criminal organizations.

Now, even if the law applies retroactively, it won't protect Slatic.

"We either capped it or weren't going to get passage, so we took it," Slatic says. "It was better than nothing, but once again [law enforcement] kept their hand in the cookie jar. It has nothing to do with cartels, it just gave them the ability to go after bigger companies like mine."
At least Mr. Slatic now gets the picture: even if you think it can only happen to someone else, protecting their rights might just be a good idea. Because unless your name appears as a specific exemption to the law, it can happen to you.

 

jocal505

moderate, informed gunowner
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Interesting. Here's a thread with Pooplius talking to himself.

Most of the thread is Tom posts, responding to other Tom posts.

 

Pertinacious Tom

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Tom, FWIW, we are aligned on this topic. When enforcement authorities can benefit from enforcement, the will enforcement to provide the maximum benefit.
Thanks, A Guy. How did you slip past the "gun posts only" screen?

The truth is, the drug warrior position has not been all that politically popular since the 1980's. People initially bought into the "we'll only use it against major dealers" crap but have learned better, many though hard experience.

The other truth is, it doesn't matter. We re-elected the same Congress and people like Rand Paul who would pass reforms like the FAIR Act are as popular as ever with that crowd.

 

Pertinacious Tom

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Jeff Sessions: Champion of Forfeiture

Enter Sessions. Midway through the committee hearing, he declared that he was “very unhappy” with criticism of civil forfeiture, because in his view “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.” Apparently drawing a number from thin air, Sessions announced “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.”

Now, nobody disputes that government needs the power to punish criminal behavior. But first things first: Before government labels someone a “criminal,” it has to secure a criminal conviction. The fact of the matter is, we have no way to know what portion of civil forfeitures involve genuine “criminals,” as the whole point of civil forfeiture is that government can take property without convicting or even charging anyone with a crime.

If Sessions is correct that civil forfeiture reliably targets criminals, the government should have no trouble proceeding under the criminal law.

But, Sessions asserted, it would be "unthinkable that we would make it harder for the government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit." Thus, Sessions believes when government wants to take property allegedly involved in a crime, it “should not have a burden of proof higher than a normal civil case.”
Proving a crime before punishing it is unthinkable! Punish first! Prove later! Or never!

 

A guy in the Chesapeake

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This is how too many peoplease think, Tom - establishing a solid basis for an action before undertakING that action is a waste of time when you KNOW that what you want to do will work!

 

Pertinacious Tom

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College Student To Get His $11k Back With Interest

To take the money, the cops needed only probable cause to believe it was connected to illegal drug activity in some way; they did not even have to specify how. The forfeiture complaint was, as usual in such cases, maddeningly vague, claiming the money "was furnished or intended to be furnished in exchange for controlled substances, was proceeds traceable to such an exchange, or was intended to be used to facilitate the illegal sale of narcotics." Although the cops found no drugs in Clarke's bags or on his person and did not charge him with a crime, the pot smell and the large amount of cash were enough to make the money disappear.


To keep the money, the government theoretically had to show that it more likely than not came from selling drugs or was intended to buy them. But that burden applied only if Clarke had the means to challenge the forfeiture once the government had taken his savings. Innocent owners often find that standing up for their rights costs more than the value of the property they are trying to get back. Luckily for Clarke, he had the Institute for Justice in his corner.
I applaud the Institute for Justice for righting these wrongs one at a time but until we get rid of the incentives for law enforcement to seize property, we'll continue to see an unending stream of them, most of which won't catch the attention of IJ.

 

Pertinacious Tom

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I hadn't heard of this one:

Due Process Act

Washington, D.C. – The House Judiciary Committee today approved by voice vote H.R. 5283, the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2016 (Due Process Act) to strengthen protections for Americans’ property through civil asset forfeiture reform.
"Deterring Undue Enforcement" is pretty good. These bill names are one of the few creative things our government does pretty well. You try to turn "Due Process" into an acronym and have it make any kind of sense!

There was consternation among local law enforcement in January after the U.S. Department of Justice suspended equitable-sharing payments to local police agencies. But payments resumed in March, and observers expect many agencies may be emboldened going forward.

The incoming president’s choice for attorney general – Republican Sen. Jeff Sessions of Alabama – supports civil asset forfeiture and opposes reform. Police groups across the country said it’s an important law enforcement tool, Sessions told The Washington Post, and ending the sharing of seized cash with local departments “would be a huge detriment to law enforcement.”
If the futile effort to take the profit out of the black market is really the goal, where the seized cash goes should make little difference. Whatever the police need, and nothing more, should be funded through taxation, not property seizure proceeds.

And not anything else, I might add. In tool-related news, Ohio's proposed new concealed carry law gives sheriffs the proceeds from CWP application fees. Sheriffs should not have an incentive to give out permits, nor should they have an incentive to seize property. It's really simple: whatever the police need, and nothing more, should be funded through taxation.

 

Pertinacious Tom

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Institute for Justice Sues Border Patrol and IRS

What makes the IRS and CBP's opacity so, well, transparent is that the Institute says the Justice Department handed over records from its asset forfeiture database in just three months—a mere blink of an eye in federal government time—and at no cost.

Yet, when the Institute for Justice submitted a FOIA request in March of last year to the IRS for records from its Asset Forfeiture Tracking and Retrieval System (AFTRAK) database, the agency responded six months later, saying it would charge $753,760 for the Institute to see the documents.

The IRS rejected the Institute for Justice's application for a FOIA fee-waiver, which are available to nonprofit groups and media working in the public interest. In its lawsuit, the Institute argues it is entitled by statute, as a nonprofit organization, to a fee-waiver, and that the IRS estimate of labor and costs to complete the request are wildly overblown.

Meanwhile, CBP rejected the Institute's March 2015 request for records from its Seized Asset and Case Tracking System (SEACATS) altogether, first claiming the request was "overbroad" and then that the entire database was categorically exempt from public records requests because it contains law enforcement techniques and procedures.

In its lawsuit against CBP, the Institute for Justice says the CBP's claims are "implausible and improper." The database, it says, contains things like the type, value, and date of seizures, not sensitive law enforcement information.

...
I wonder why the IRS thinks that the Institute for Justice is not entitled to the fee waiver? They seem to be working in the public interest to me.

 

jocal505

moderate, informed gunowner
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Tom has very high standards of behavior. He is truly a cut above.

He is the One_Limit_Shootah. No court system needed.

Tom's civics ensure domestic tranquility.

 
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jocal505

moderate, informed gunowner
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Seattle, Wa
Gun%20Grabber%20Boogallo%20II_zps4jadkbnj.png


 

jocal505

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Seattle, Wa
That was it. The Continental Army got the confiscated guns. And Tom Paine stood by.

Would you take a loyalty oath today?

 
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