By: Richard A. Correa Sr. SGT RIARNG, Retired
Most Americans are completely unaware of this nation’s Civil Asset Forfeiture laws, and those that are aware of these laws usually became aware of them after the government has seized an item of property belonging to them for a crime that was never committed. In Civil Asset Forfeiture actions, the owner of the property is not charged with a crime, but the property is seized for either “hosting” an illegal activity or being the proceeds of an illegal activity, mostly for drug related activities. Once seized it is up to the property owner to prove the alleged activity did not happen and therefore the property should be returned to the owner (or, in the event the activity did take place, that the owner had no knowledge of the alleged activity and therefore is an innocent bystander). These laws are such a violation of our rights under the US Constitution that it has to be said again, THE PROPERTY OWNER MUST PROVE THAT THE PROPERTY WAS NOT THE SCENE OF AN ILLEGAL ACTIVITY OR THAT THE PROPERTY IS NOT THE PROCEEDS OF AN ILLEGAL ACTIVITY; the government is not required to prove anything.
The majority of these seizures go uncontested because of the value of the asset seized. As stated on the webpage of Forfeiture Endangers American Rights, “The average vehicle siezed is worth about $4,000,” states FEAR president Brenda Grantland, Esq. “To defend a case, especially when you’re out of state, they’ve pretty much made it cost prohibitive.”
Under these laws the mere possession of cash can be considered evidence of criminal activity though no crime has been committed and the person holding the cash is not in possession of illegal drugs or drug paraphernalia. All this is being done in the name of the “War on Drugs,” with complete disregard of the victim’s constitutional protections. In some cases, people have been killed or imprisoned though they never violated any law. Some of those killed were shot by law enforcement officers serving a seizure warrant, but they had gone to the wrong address.
This activity is clearly in violation of the IVth Amendment to the US Constitution which states,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
the Vth Amendment to the US Constitution which states,
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
though the federal courts have ruled this process meets the due process clause, and section 1 of the XIVth Amendment to the US Constitution which states,
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Jennifer Abel wrote in an October, 2007, article published by the Hartford Advocate. “Even if you’re a law-abiding citizen who’s never been convicted of a crime, local police are allowed to confiscate your property and money and keep up to 80 percent of it for themselves, with the legal stipulation that this windfall be spent only on programs likely to result in additional confiscations where the police can keep up to 80 percent of the booty for themselves,”
These laws have changed our local police departments from agencies charged with enforcing our laws to highway robbers and invaders of peoples homes for the sole purpose of looting their victims and enriching the department.
The most egregious of these laws is the federal law which allowed the US Department of Justice to set up its “adoption’ program.” Under this program a local law enforcement officer can claim to be acting as a “federal deputy” at the time the officer seizes property. As most of the states have greater restrictions on asset forfeiture and returns smaller amounts of money to the police agency that made the seizure, claiming to make the seizure under the DoJ’s “Adoption Program” allows the local police agency to keep 80% of the money made by the auction of the seized property, circumventing the states’ laws, while the US Federal government keeps the remaining 20%, a win-win for everyone except the US citizen who has been robbed by this process.
In their twelve month study “Drug Enforcement’s Double-Edged Sword: An Assessment of Asset Forfeiture Programs”1 sociologists Mitchell Miller (University of Tennessee) and Lance H. Selva (Middle Tennessee State University) described forfeiture as a “dysfunctional policy” that forces law enforcement agencies to subordinate justice to profit. The researchers “covertly” observed form within drug enforcement agencies. The researchers observed the agencies they studied routinely abandon investigations of suspects they knew were dealing in large amounts of contraband because the case was not “profitable.” The researchers also observed the agencies target low level dealers rather than the large traffickers because they did not “protect” their assets as well as the “big” traffickers. The report states, “Efficiency is measured by the amount of money seized rather than impact on drug trafficking.”
In one case when the researchers asked why the police had not served a warrant on a drug dealer known to have large quantities of contraband for sale an officer replied, “Because that would just give us a bunch of dope and the hassle of having to book him (the suspect). We’ve got all the dope we need in the property room, just stick to rounding up cases with big money and stay away from warrants.”
In another case the researcher was told to “observe the suspects” daily transactions so the police could wait until the cocaine the drug dealer was selling had been “converted” to cash so making the arrest would be “profitable.”
The information in the report leads to the inevitable conclusion that the anti-narcotics efforts of the agencies observed were not to stop the inflow of illegal drugs, but to maximize the profit made by the law enforcement agencies under study.
In an article written by John Worral titled “Addicted to the drug war: The role of civil asset forfeiture as a budgetary necessity in contemporary law enforcement” he stated, “A conflict of interest between effective crime control and creative fiscal management will persist so long as law enforcement agencies remain dependent on civil asset forfeiture.”2
In the early 1990’s the US Forestry Department became interested in acquiring the “Trails End Ranch,” which abutted the Angeles National Forest in Malibu, California from its owner, Donald Scott, a local millionaire. Mr. Scott did not wish to sell the property and the matter would have ended there except for two enterprising LA County sheriff’s deputies. After conducting some “over flights” of the property, the deputies falsely reported that Mr. Scott was growing marijuana on his property for sale.
In the early morning of October 2, 1992, LA County Sheriff’s deputies and agents from five federal agencies entered Mr. Scott’s home to serve an asset seizure warrant that was based on the false report of the sheriff’s deputies. The Scotts were awakened by the police smashing in their door. Mrs. Scott ran down stairs to be faced with several heavily armed men, dressed like ninjas, entering her home. When her husband heard her scream, “Don’t shoot me,” Mr. Scott, who was recovering from recent cataract surgery, exited their bedroom carrying a gun and came to the top of the stairs of their home. The police ordered him to lower his weapon and as he did so they shot him, killing him.
Mrs. Scott fought to recover their property and for justice over the killing of her husband. Because the government seized all of their property and money, she lived on the tennis court of the property, refusing to leave but unable to stay in her own home because the government locked her out.
In a report by the Ventura County District Attorney, Michael Bradbury, stated that the police lied to get the warrant, that no illegal activity had taken place on the property, and the incident was motivated by the desire to forfeit the multi-million dollar property. Despite this, no law enforcement officer was disciplined for this action in any way.
A number of articles on the topic have also appeared in many newspapers and magazines over the years, and yet the public remains mostly ignorant of these laws. In an article titled “Guilty Until Proven Innocent” by Randy Fitzgerald3, five instances of abuse were cited where the government was proven to be “wrong” in seizing the property, but the property owner had to go through great expense to recover their property, sometimes having to sell the recovered property to pay their legal expenses.
For instance, in December 1995 Cheryl Sanders was driving on US Interstate 10 when she was stopped for speeding. Instead of getting a ticket, the police arrested her and took her to the Sulphur, LA jail. There she had to submit to a strip search. After searching her and her car she, was released but the police seized her car stating it had a secret compartment for transporting drugs. She hired an attorney and after seven months, a judge ruled the police had to return the car; however, by then she had to sell the car to pay her attorney fees.
Is any of the above the way you want your local, state and federal law enforcement agencies to work? Do you want the police basing their law enforcement decisions on how profitable they may be? Do you want them ignoring criminal activity because it is hard to get a good payoff for the effort? Do you want them to get away with falsifying reports so they can get warrants to take your property when no crime has been committed? And when they kill an innocent person, should they get away with it?
How did the founders of this nation view the right to property and the government’s responsibility in that regard? In the Federalist # 10 James Madison said,
“The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”
In the same document he further stated,
“The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.”
And, in the same document, when speaking of the advantages of a republic over a democracy he stated,
“Such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
John Adams stated it this way in the Massachusetts Declaration of Rights,
“All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”4
Thomas Jefferson said,
“I believe .. . that a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings; that no one has a right to obstruct another exercising his faculties innocently for the relief of sensibilities made a part of his nature . . .” 5
From the above it is clear that what the federal, state and local governments have implemented in these civil asset forfeiture laws are antitheses to what the founders of this nation intended. The governments of these United States are stealing the property of law abiding citizens, in violation of all constitutional principles, based on hearsay and falsified evidence without having to prove in a court of law the alleged crimes the government says give them the right to seize the property. These laws turn upside down the whole concept of innocent until proven guilty.
For those that have never been affected by these laws the repeal of them would not be noticed except, perhaps, for a slightly increased sense of security. For those that have been the victims of these heinous statutes, the repeal of them would provide some small measure of vindication that their loss was not in vain, and that their travail was instrumental in restoring some of our lost liberty.
So what do we want? We want the government of these United States, and their associated law enforcement agencies, to cease using these odious statutes as an excuse to steal from us and the national and state legislatures to immediately repeal the offending “laws.”
1 Sociologists Mitchell Miller (University of Tennessee) and Lance H. Selva (Middle Tennessee State University) Drug Enforcement’s Double-Edged Sword: An Assessment of Asset Forfeiture Programs
2 John L. Worrall, Department of Criminal Justice, California State University, San Bernardino, Addicted to the drug war: The role of civil asset forfeiture as a budgetary necessity in contemporary law enforcement, Journal of Criminal Justice Volume 29, Issue 3, May-June 2001, Pages 171-187
3 Randy Fitzgerald Guilty Until Proven Innocent Readers Digest March 2000
4 G A Peek, Jr, (ed) ‘The Political Writings of John Adams ‘(New York, 1954) p 96
5 E Dumbauld (ed) ‘The Political writings of Thomas Jefferson’ op cit p 49