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The problem is I shouldn't associate with criminals...it's my own fault if I wake up to a flashbang melting off my face.
We've covered this before. In that case, it was your parents' fault. I'm slightly curious to know what they were doing / who they were associating with which raised the ire of the feds so thoroughly.
I come from a family which, depending upon your point of view, could be classified as terrorists and gun-runners. But they cleaned up their act after leaving Cuba, and we've had no significant run-ins with law enforcement since.
A ticket agent complained that Clarke smelled like marijuana at the time. During his interview, agents took $11,000 in cash that Clarke was going to use to pay for college. Investigators and prosecutors claim the money came from drug dealing.
The ensuing legal battle over civil asset forfeiture made national headlines and illuminated an issue that nets local and federal agencies millions of dollars every year.
Civil asset forfeiture is a practice in which police are able to seize cash and property from people who are suspect of a crime -- even if that person isn’t convicted or sometimes even charged.
The case was back in U.S. District Court this week for a discovery hearing.
During the hearing, Judge Williams Bertelsman said he believed Clarke’s story.
Clarke’s lawyers asked for documents from the government with the intent to prove there are constitutional problems with the practice and that it gives police a profit-driven motive to seize property and funds.
The U.S. attorneys were not able to give all the documents to Clarke’s team and so they took the issue up with Judge Bertelsman. He decide to split the case into two parts:
First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.
Second; if the government proves the money came from drugs, Clarke’s team will have to argue against the issue of civil asset forfeiture itself. I.e., arguing that the practice is profit-driven or worse.
For now, the burden of proof is sent back to the U.S. government. The judge has already ruled that the forfeiture itself was legal -- Clarke smelled of marijuana giving agents probable cause.
The question now is whether or not the government can prove Clarke earned the money via the drug trade.
Both sides have until Feb. 1, 2016 to complete their investigation.
Between 1989 and 2010, U.S. attorneys seized an estimated $12.6 billion in asset forfeiture cases. The growth rate during that time averaged +19.4% annually. In 2010 alone, the value of assets seized grew by +52.8% from 2009 and was six times greater than the total for 1989. Then by 2014, that number had ballooned to roughly $4.5 billion for the year, making this 35% of the entire number of assets collected from 1989 to 2010 in a single year. According to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.
The police have been violating the laws to confiscate assets all over the country. A scathing report on California warns of pervasive abuse by police to rob the people without proving that any crime occurred. Even Eric Holder came out in January suggesting reform because of the widespread abuse of the civil asset forfeiture laws by police.
Bloomberg News has reported now that Stop-and-Seize authority is turning the Police Into Self-Funding Gangs. They are simply confiscating money all under the abuse of this civil asset forfeiture where they do not have to prove you did anything. Prosecutors are now instructing police on how to confiscate money within the grey area of the law.
A class action lawsuit was filed against Washington DC where police were robbing people for as little as having $100 in their pocket. This is getting really out of hand and it has indeed converted police into legal criminals or “gangs” as Bloomberg News calls them.
The Justice Department just shut down a huge asset forfeiture program
Christopher Ingraham December 23
The Department of Justice announced this week that it's suspending a controversial program that allows local police departments to keep a large portion of assets seized from citizens under federal law and funnel it into their own coffers.
The "equitable-sharing" program gives police the option of prosecuting asset forfeiture cases under federal instead of state law. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize -- even if the people they took from are never charged with a crime.
The DOJ is suspending payments under this program due to budget cuts included in the recent spending bill.
"While we had hoped to minimize any adverse impact on state, local, and tribal law enforcement partners, the Department is deferring for the time being any equitable sharing payments from the Program," M. Kendall Day, chief of the asset forfeiture and money laundering section, wrote in a letter to state and local law enforcement agencies.
In addition to budget cuts last year, the program has lost $1.2 billion, according to Day's letter. "The Department does not take this step lightly," he wrote. "We explored every conceivable option that would have enabled us to preserve some form of meaningful equitable sharing. ... Unfortunately, the combined effect of the two reductions totaling $1.2 billion made that impossible."
Asset forfeiture has become an increasingly contentious practice in recent years. It lets police seize and keep cash and property from people who are never convicted — and in many cases, never charged — with wrongdoing. Recent reports have found that the use of the practice has exploded in recent years, prompting concern that, in some cases, police are motivated more by profits and less by justice.
Criminal justice reformers are cheering the change. "This is a significant deal," said Lee McGrath, legislative counsel at the Institute for Justice, in an interview. "Local law enforcement responds to incentives. And it's clear that one of the biggest incentives is the relative payout from federal versus state forfeiture. And this announcement by the DOJ changes the playing field for which law state and local [law enforcement] is going to prefer."
Previous research by the Institute for Justice has shown that when states have stricter forfeiture laws, cops are more likely to pursue forfeiture cases under federal law as a means of bypassing those stricter state restrictions.
In California, for instance, police are allowed to keep 66.25 percent of forfeiture proceeds under state law, but 80 percent if they opt for the federal equitable sharing route. And forfeiture figures reflect this: In 2013, California police forfeited $28 million worth of cash and property under state law, but $98 million under federal law, according to the Institute for Justice's research.
It's unclear how much of the total national forfeiture haul will be affected by the DOJ's change, since many states don't make their forfeiture data public. But as the case of California shows, it is potentially significant: In that state in 2013, nearly eight out of every 10 dollars of forfeited property went through federal law. Under this change, that flow of cash would be shut off.
Some law enforcement groups are less than happy with the change. The International Association of Chiefs of Police (IACP) said in a statement that "this decision is detrimental to state, local, and tribal law enforcement agencies and the communities they serve."
In a letter sent to President Obama, the leaders of Congress, and Attorney General Loretta Lynch, the heads of six law enforcement groups -- including the IACP and the National District Attorney's Association -- wrote to express "profound concern" over the changes: "This shortsighted decision by Congress will have a significant and immediate impact on the ability of law enforcement agencies throughout the nation to protect their communities and provide their citizens with the services they expect and deserve."
The National Sheriff's Association was even more critical. "While Congress and the President vacation in peace and tranquility, law enforcement knows all too well that the criminals, terrorists, and criminal aliens do not take a holiday," the group wrote in a statement. "Those seeking to do us harm can rest easier knowing one less tool can be used against them."
But reformers point out that the change doesn't impact law enforcement's ability to seize goods from suspected criminals -- it only changes their legal options for keeping what they take. The change "does not stop police and prosecutors from chasing criminals," McGrath said in a statement. "[Police] are frustrated because Congress put on hold their chasing cash."
Regardless, the change may not be permanent. In its letter, the DOJ hints that it may be able to restart payments later: "By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve." The DOJ hopes to "reinstate sharing distributions as soon as practical and financially feasible," the letter concludes.
Oklahoma Cops Can Now Seize Money From Prepaid Debit Cards, Without Filing Criminal Charges
Nick Sibilla, JUN 8, 2016
Law enforcement agencies in Oklahoma have purchased devices that allow police to seize and freeze funds electronically, which may dramatically expand their power to permanently confiscate property using asset forfeiture. Manufactured by the Texas-based ERAD Group, the devices work on “open loop” prepaid debit cards, like those offered by Visa or American Express. However, “debit cards attached to a valid checking account or valid credit cards cannot be processed” by an ERAD (Electronic Recovery and Access to Data) system.
One contract obtained by Oklahoma Watch states that the Oklahoma Department of Public Safety will pay ERAD Group $5,000 for implementation and $1,500 for training on how to use the devices. In addition, ERAD Group will also receive a “processing fee” of 7.7% of all money seized using the readers. That incentive to seize also mimics Oklahoma law, which allows police and prosecutors to keep up to 100% of the proceeds from forfeited property, even if the owner was never convicted or indicted. Records obtained by the Institute for Justice show that in 2012, 70% of all forfeiture expenditures in Oklahoma funded salaries for law enforcement.
The Oklahoma Department of Public Safety says it installed 16 prepaid card readers last month but has yet to seize cash with them.
ERAD devices originated with a “prime development contract” awarded by the Department of Homeland Security, which claimed drug runners and couriers were increasingly turning to prepaid cards as an alternative to transporting cash. According to ERAD Group:
"Even with probable cause, [customs officials] had no way of identifying the card value, freezing the funds or seizing the money at the point of arrest. ERAD-Prepaid™ solved that problem by condensing a process that takes many days, weeks or months into one that takes a few seconds."
Yet prepaid cards are also becoming increasingly popular among ordinary Americans. In 2012, $65 billion was loaded onto these cards, more than double the amount stored in 2009. A 2014 survey by the Pew Charitable Trusts found that about 12 million people use prepaid debit cards at least monthly. Compared to the general population, prepaid cardholders are more likely to be younger, renters, single, African American and earn less than $25,000. One in seven users even received their prepaid cards either from their employers or a government entity.
In fact, over 40% of prepaid card users do not currently have a checking account. As one survey respondent explained, “I don’t want to walk around with my life savings in my pocket to lose it or be robbed.”
In other words, the ERAD devices will most likely disproportionately affect lower-income Americans while further making a mockery of due process. A presentation by ERAD Group President T. Jack Williams even claimed that “individuals do not have privacy rights with magnetic stripe cards” and that a police scan of those cards “does not violate an individual’s fourth amendment rights.”
“It’s scary to know that technology even exists and that government agencies are using it without an arrest, without a warrant,” state Sen. Kyle Loveless told Oklahoma Watch. Loveless had previously introduced a bill that would have required a criminal conviction to forfeit property in most cases. But after facing forceful lobbying from law enforcement groups, his bill failed to receive even a committee hearing.
Making it easier to allow cops to seize even more property is just opening a Pandora’s box. That is especially true in Oklahoma, which has been a breeding ground for forfeiture scandals. One prosecutor used forfeiture funds to pay off his student loans, while another lived rent-free in a seized house. In late March, an Oklahoma grand jury indicted a county sheriff and deputy for extortion and bribery over a cash seizure resulting from a traffic stop.
And in a case that made national headlines, the Muskogee County Sheriff’s Office seized over $50,000 from a Christian rock band that was raising money for a Burmese nonprofit school and a Thai orphanage. Outrageously, the county district attorney indicted Eh Wah, the band’s manager who was transporting the cash, for possessing drug proceeds, a felony in Oklahoma. Yet deputies never found any drugs or any evidence linking Eh Wah to the drug trade. Only after the Institute for Justice announced it was representing Eh Wah and the other innocent owners did the county relent: It returned the cash and dropped the bogus charge.
“Not every civil forfeiture victim is a Christian orphanage or a world-renowned Burmese Christian band,” IJ Attorney Dan Alban said in a statement, “but when even their money isn’t safe, no one’s money is safe from forfeiture abuse.”
If you or anyone you know has been a victim of civil forfeiture, please contact the Institute for Justice. For more information on civil forfeiture, visit endforfeiture.com.
The Supreme Court is looking for cases to curb abusive law enforcement seizures.
By Perry Grossman
It’s been a rough year for the Supreme Court. While the court tried to avoid controversial cases and to reach consensus whenever possible, the Republican Senate blockade of Merrick Garland and the tense process around Neil Gorsuch’s confirmation made it look more partisan than any time since Bush v. Gore. Fortunately, though, the court appears to have found a new issue on which to find common ground and attempt to rebuild public confidence: curbing civil forfeiture abuses and other property seizures by police. That may not sound like the sexiest topic, but it’s one that is at the heart of one of the most controversial areas of law enforcement.
Last week, in a case called Nelson v. Colorado, the court laid a foundation for upcoming challenges to roll back law enforcement overreach. As a result of respective 2005 and 2006 convictions, Louis Alonzo Maddon and Shannon Nelson were required to pay a few thousand dollars in court costs, fees, and restitution to Colorado (on top of serving prison time). But Nelson and Maddon ultimately had those respective convictions invalidated. They both then asked for refunds on those paid costs. But the Colorado Supreme Court held that to obtain refunds, a state law called the Exoneration Act required them first to file separate civil court proceedings—where they would have to pay for their own lawyer or find one to represent them for free—and prove “by clear and convincing evidence” that they were “actually innocent.” The “actual innocence” standard would force them to bear the enormous burden of proving a negative, to demonstrate “by clear and convincing evidence” that they had not committed the crimes in question.
A succinct majority opinion by Justice Ruth Bader Ginsburg—joined by Chief Justice John Roberts, and Justices Kennedy, Breyer, Sotomayor, and Kagan—reversed the Colorado Supreme Court, holding that Colorado’s demanding scheme for refunding money to exonerated defendants violated the Due Process Clause of the 14th Amendment. (Justice Alito wrote a separate concurring opinion, while Justice Thomas dissented.) Ginsburg wrote: “once their convictions were erased, the presumption of innocence was restored. ... Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” This makes sense to anyone who’s ever seen an episode of Law & Order and thus knows that a criminal defendant is presumed innocent until proven guilty. It follows that if a conviction is invalidated, the defendant hasn’t been proven guilty and he or she is once again presumed innocent.
The presumption of innocence means that a defendant who can’t prove her “actual innocence” isn’t any less innocent than one who can. No matter how egregious or benign the reversible error may seem, as Ginsburg writes, “reversal is reversal [a]nd an invalid conviction is no conviction at all.” The Due Process Clause, thus, prohibits states from making defendants go through “anything more than minimal procedures” to get their money back.
At first glance, it’s a little puzzling why the court bothered to decide this case at all. It generally only hears cases that resolve matters of extraordinary national importance, well-established disagreements between lower courts, or issues likely to recur frequently or affect large groups of people. Colorado’s scheme was unique among the states. Moreover, within a week of the Jan. 9 oral argument, the Colorado legislature unanimously passed a bill fixing the procedure by which exonerees can receive refunds, a bill that the governor signed into law six weeks before the court issued its opinion. A change in circumstances of this magnitude might have caused the court to consider dismissing its writ of certiorari. But the court forged ahead with Nelson. Why? It probably wanted to make a point. Specifically, the majority likely wanted to take a strong and unified first step toward addressing the Due Process rights of a larger group: people whose property is seized without having ever been convicted of any crime.
Thanks to John Oliver and Donald Trump, among others, the most high-profile such seizures is the abuse of civil asset forfeiture laws, which allow police to seize property that has been involved in a crime—using a preponderance of evidence standard, rather than the guilt beyond a reasonable doubt one—regardless of whether the property owner has been arrested, let alone convicted. Forfeiture remains a favorite pastime of law enforcement, which often keeps the seized property or the money from selling it, but its gross overuse has attracted the ire of both liberals and conservatives.
Another similar issue arises when police take money and/or property from the people they arrest as evidence or for safekeeping and then maybe return it (or maybe not) when the arrestee’s criminal case ends. Due to convoluted and drawn out property return procedures—or simply law enforcement recalcitrance—people whose cellphones, wallets, medications, or even cars are confiscated upon arrest may have to wait protracted periods or give up on seeing their property returned altogether, especially if they don’t have a lawyer to help them navigate the system. Police also may charge fees for the privilege of being arrested, which may or may not be refunded if the criminal case ends without a conviction. Each of these seizures comes with the same impermissible erosion of the presumption of innocence that Justice Ginsburg identified in Nelson.
The court appears to be on the lookout for a good vehicle to address these Due Process concerns but hasn’t had much luck yet. In March the justices declined to hear Leonard v. Texas, in which a woman challenged the forfeiture of more than $200,000 that she claimed were proceeds from the sale of her home but which the police claimed were proceeds of drug sales after they found the money in a safe in the trunk of a car driven by her son on a route known for drug trafficking. No one connected with the money was convicted of any drug-related offense, and a bill of sale for a home was found with the cash in the safe, but the Texas court nonetheless upheld the forfeiture, finding that the woman was unable to establish that she was an innocent owner of the property. The court denied review of the case because of a critical procedural flaw, but in a statement accompanying the denial Justice Thomas made clear his distaste for recent “egregious and well-chronicled abuses” of forfeiture law—including the way it is used to prey upon the poor and minorities—and signaled his interest in a case that would give the court an opportunity to rein in those abuses. (Thomas’ idiosyncratic dissent in Nelson doesn’t undo his indictment of civil forfeiture laws in Leonard but suggests he’s much less likely to be receptive to challenges to seizures in the criminal context.) The court also expressed some interest in hearing an appeal from an 8th U.S. Circuit Court of Appeals case, Mickelson v. Ramsey County, that upheld a Minnesota county’s policy of charging a $25 “booking fee” that could be refunded upon showing that the case ended in the arrestee’s favor. The court ultimately voted against hearing the case two days before the Nelson opinion came down. But it’s important to note that while the 8th Circuit turned away this challenge to the booking fee policy, its opinion left open the possibility that future plaintiffs could show a Due Process violation under circumstances similar to those in Nelson, that is, where a state’s procedures make it too expensive and time-consuming for people to recover their property after a criminal case ends without a valid conviction.
In the end, the court was left only with Nelson to set up a beachhead on the issue of abusive property seizures. It’s one that sits at the intersection of causes dear to both the liberal justices (rights of criminal suspects) and conservative justices (government interference with property rights), offering the tantalizing prospect of opinions supported by broad coalitions that cross ideological lines on a matter of great public interest. Forfeiture reform has proponents on both sides of the aisle in Congress, so the court likely won’t be accused of legislating from the bench. And it can’t hurt that public opinion shows strong opposition to seizing a person’s property before he or she has been convicted of a crime. The court’s response in these cases should be seen as strong encouragement from the justices to bring them others with well-developed records that allow them to squarely address these constitutional concerns. For those justices who spent the last year working to counter the perception that the Supreme Court should not be seen as an institution as politically polarized as the rest of the country, those cases cannot come fast enough.
11-16-2015, 08:35 AM
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