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January 16, 2015

AG Holder announces notable new limits on civil forfeitures to fund local police

As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:

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 proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

January 16, 2015 at 04:43 PM | Permalink

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Comments

For the LIFE of me, I never understood why these laws were not challenged for many of the seizure processes. The original intent of the law was to prevent suspects from using income that were a direct result of illicit or illegal activity, such as drug sales, particularly for financing their defense with high-powered attorneys.

But somehow, seizure morphed into this profit center to which ANY property affiliated with the suspect that contributed to the crime was fair game. For instance, suspects in sex offender stings forfeited their cars they used to drive to meet the sting officer, people lost their homes when they bought cocaine from a friend who came over to their house, and other property was lost even though the property was not used for profit-gaining purposes. (I'm not talking about houses that were sold as PART of the illicit transaction, but the actual house people lived in.)

Of course, the answer was the profiteering of the law enforcement industry. In Florida, this action was taken to a new level when officers put out Craig's list ads soliciting men for legitimate adult encounters (not prostitution), then in the conversations that followed, the sting operator introduced a child into the mix. The cars and cash the men had on them were confiscated, and transcripts of the craigs list chats were not released, so it was very apparent to what they were doing.

Posted by: Eric Knight | Jan 16, 2015 11:22:05 PM

can I get a NO SHIT! This is what the law should be. Sorry but absent a CONVICTION for a crime with proof given during said trial about the items to be seized as product of a crime. You get NOTHING!

Absent that. the gov't is just another fucking thief.

Posted by: rodsmith | Jan 16, 2015 11:32:19 PM

This practice was upheld by the Supreme Court in Bennis v. Michigan, 516 U.S. 442 (1996). It shows that if the Court has a bias it strongest in favor of government, especially, governmental money making.

1) It violates Fifth Amendment due process

2) If angers innocent middle class people who then grow to hate the criminal justice system.

3) the conflict of interest is so intense that the practice verges on theft.

Posted by: Supremacy Claus | Jan 17, 2015 2:31:42 AM

SC:

"1) It violates Fifth Amendment due process

2) If angers innocent middle class people who then grow to hate the criminal justice system.

3) the conflict of interest is so intense that the practice verges on theft."

Bingo!

Let me paraphrase a common saying, No matter how many black robes you put on a pig, it is still a pig.

I know this is a "Law" blog, (heads bowed please), but the study and practice is useless when it comes to limiting government overreach so why should talking about "the law" with its many silent abdications to nonsense matter.

Posted by: albeed | Jan 17, 2015 9:53:44 AM

Labeled. The take is so huge, the police will ignore Holder until the practice is prohibited by statute or Supreme Court decision. Holder is making a wish with no force of law. You have $billions here and a nice Porsche for the Police Chief and pleasing Holder there. Guess what.

Posted by: Supremacy Claus | Jan 17, 2015 10:31:19 AM

It is settled common law, land logical, that employed peace officers cannot use the public nor collect bounties, for dozens if not hundreds of years. So, the Supreme Court upheld that violation.

Posted by: Supremacy Claus | Jan 17, 2015 11:17:42 AM

Bennis v. Michigan was a case that I thought stupid at the time & still do.

But, if this is about "without proving that a crime occurred" seizures, that isn't a good cite. Bennis "was convicted" after having sex in a car with a prostitute. The injustice to me was that the wife lost her interest in the car. The monetary value was trivial (the car was cited as being worth $600) but the principle is not.

The case "is not that she was denied notice or an opportunity to contest the abatement of her car" -- due process concerns are repeatedly raised in these cases.

The case did have a broad reach. It held that "a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use." A wife's co-interest in a cheap car is not a great set of facts -- a spouse in effect can be thought of being joined at the hip here -- but the principle is broad indeed. A home can be lost because a teen smoked pot while the parents were on vacation.

Randy Balko calls this decision a 'big deal." Given his long advocacy against the practice and libertarian bona fides, that is both notable and reassuring.

http://www.washingtonpost.com/news/the-watch/wp/2015/01/16/breaking-down-holders-move-to-limit-civil-asset-forfeiture-abuse/

Posted by: Joe | Jan 17, 2015 11:54:29 AM

Ok...Let me Tell You...I have now been a forfeiture battle with the Government for EIGHT YEARS. Yes, that is right...my property was seized by the Government in October of 2008, and I have watched 2009, 2010, 2011, 2012, 2013, 2014 all pass, and now I'm before a Circuit on appeal in 2015. (Mr. Berman knows this all to be true)...and I have raised Due Process OVER AND OVER and it's gotten me no where.

I WAS accused of Federal crimes...went to trial...and was acquitted of every charge against me. Did that get me my property back? NO.
The court has acknowledged IN THEIR OPINION that I am NOT claiming any proceeds of any crime (proceeds of crime "vests" to the Government upon the commission of the crime)....

No, I am trying to recover money that the Government and EVEN THE COURT admits is not traceable to the crime...that was in a bank account, in MY NAME, right up the street from my house.
Why is this happening? The court says...that SOMEHOW... I am a "nominee owner" of my OWN bank accounts!!! and/or that I should have figured out that my own bank accounts were used for a criminal purpose(and because I didn't...I obviously wasn't "controlling" them)....and therefore, they aren't mine??!! (and this is after the Gov told the jury at the trial that they WERE mine (ie showed the signature cards...accused me of doing such "nefarious" things as buying a boat!)

Now to complete this "thru the looking glass" circle....the crime I was accused of ..."Money laundering" states that I am guilty of a crime, punishable by up to 20 years in prison...if I do a financial transaction with the proceeds of crime, KNOWING they are, in fact, proceeds of crime. So, since it is not disputed, that I did the financial transactions in question....the jury obviously had to find, that, I did NOT know the funds in question were proceeds of a crime...however, PER THE TRIAL...the same jury DID find that there was a crime, that DID produce proceeds (mail and wire fraud) and the jury convicted my co-defendants of that crime.

So I was found NOT guilty...and I didn't go to prison....because the jury found I DIDN'T know about the crime...

BUT

when I go to claim my money (and the boat in question), the court basically says "it was not REASONABLE for you to NOT have known about the crime...so the Government gets to keep your assets". And so, eight years after seizure...the Gov still has my assets.

So PRISON and LOSS OF ASSETS (including assets NOT connected to the crime, because they were merely "involved" in the crime) if I KNEW about the crime....

and NOT prison...but STILL LOSS OF ASSETS because I DIDN'T know about the crime.

I AM NOT MAKING THIS UP. This is really how our forfeiture laws are affecting a real person.

Posted by: folly | Jan 17, 2015 12:49:33 PM

your nicer than I am folly. In my book in your case the gov't is a THIEF and like SC says it's settled common law that a thief caught in the act can be SHOT! no matter what fucking costume they have on. So i'd be working their asses. 1 dollar of my money equals one dead gov't stooge. till they returned my property or they were all dead! their choice!

Posted by: rodsmith | Jan 17, 2015 3:30:16 PM

Well, I've had to wait...and patiently. The Government seized my property for Civil Forfeiture in 2008...then stayed the case. They then filed for the same property for Criminal Forfeiture in 2009. Trial was not until 2011...so for all of that time, there is in theory, no violation of due process, because there is an "adequate" remedy for you to recover your property at the end of the criminal trial (however long THAT takes). Relying on the statutes, which state that after a trial the court will "promptly" find what property is subject to forfeiture, we allowed the civil case to stay stayed...but then asked for a consolidation...so that both could be resolved at once. Rather than file "promptly"...the court took a year to enter the order that allows me, as a now "third party" to intervene. When I did file a claim to the property..."discovery" was allowed...and for some reason, the hearing was not set until a date that was about a year from the order. After the hearing... no judgment was entered for ANOTHER year. I did not recover what I thought I should, so I had to appeal THAT order. It has now been ANOTHER YEAR! and my appeal is not yet submitted to a panel for consideration. I am frustrated beyond measure!
In a Supreme Court ruling US v $8850 https://scholar.google.com/scholar_case?case=13115515336027472470&q=%248850&hl=en&as_sdt=4000006
The court found that being deprived of property for 18 months was "significant". I don't know what they'd make of my MANY YEARS delay..I hope it is not to set some new standard "Well, in Folly's case the court found that a Seven year delay was a problem...but you've only been delayed for two years, so what are you complaining about?"
And worse, even if I prevail...what do I get for my trouble? due process? Violation of due process, is repaid with...Due process? Not sure how that makes up for the years of teeth gnashing and deprivation.

Posted by: folly | Jan 17, 2015 4:19:22 PM

Lawyer question.

Kid parties while parents away, with much illegal drug use. Authorities say to parents, we didn't say you committed any crime. We said your house committed a crime, drug use and distribution.

The house is half owned by the parents and half owned by the mortgage company. Does the mortgage lender now forfeit its portion of the equity still owed on the mortgage? Does it them become an agent of the police checking to see no illegal activity takes place?

What happens to the interest of the lender who is even more remote from the crime? The mortgage holder has massive personal information on the borrowers that the police would never be entitled to. Does it now have to check all those entering the house for recent drug abuse?

Posted by: Supremacy Claus | Jan 17, 2015 8:29:17 PM

Lawyer question.

Kid parties while parents away, with much illegal drug use. Authorities say to parents, we didn't say you committed any crime. We said your house committed a crime, drug use and distribution.

The house is half owned by the parents and half owned by the mortgage company. Does the mortgage lender now forfeit its portion of the equity still owed on the mortgage? Does it them become an agent of the police checking to see no illegal activity takes place?

What happens to the interest of the lender who is even more remote from the crime? The mortgage holder has massive personal information on the borrowers that the police would never be entitled to. Does it now have to check all those entering the house for recent drug abuse?

Posted by: Supremacy Claus | Jan 17, 2015 8:30:09 PM

SC...I'm not lawyer, but due to my many years immersion in the details of forfeiture law...I'd say it's more likely than not that forfeiture would affect neither the parent's interest in the home (especially IF there was a singular party situation...provided it was singular...We're not talking about a crack house here obviously) NOR would the mortgage lender's interest be eliminated.

(I'm addressing only FEDERAL LAW here as well...not state law, which in many cases seems LESS protective than Federal law...see the various write-ups on what's been going on in Philadelphia, say)

The mortgage lender would (most likely) be an "innocent party" under the forfeiture laws...and with REAL PROPERTY...the property is NOT physically seized unless there are exigent circumstances (see Supreme Court case United States v. James Daniel Good Real Property" ) ...instead, the Gov posts Notice and files a lis pendens. (I have to keep saying "most likely" because there have at times been exceptions)

Let's say the Feds say the house has been used for MULTIPLE parties with OBVIOUS drug sales each time...and to make it more realistic...let's say the kid is a young adult who is "renting" the property from the parents...who live the next state over. Under CAFRA (the Civil Asset Forfeiture Reform Act from 2000)...unless the Feds can make some showing that the Parents knew or had reason to know that drug sales were happening in the house, they probably would not lose their interest, tho the house as an "instrumentality of crime" could possibly get tied up for a while. What WOULD endanger the parent's interest is IF they were NOTIFIED that drug parties were taking place in the house (ie their kid had been arrested, etc)...and they did not take steps TO STOP the criminal activity taking place in the house (they are no longer "innocent" owners) This is certainly a lot more fair than the Bennis v. Michigan Supreme Court decision where the wife lost her share of the car her husband "misused" without her knowledge or permission, and with no warning to her.

So...I'm thinking if the Feds thought about forfeiting a property where there was a mortgage, little equity (there are suggested "profitable amounts" in the Fed handbook which you can find it on line) and the owners really didn't know there was a problem...they probably wouldn't seize the property.

BUT THAT'S JUST MY OPINION.

and as far as owner's becoming the police of their own property? Absolutely! You are supposed to "take care" that your property is NOT misused (see Supreme Court case Calero-Toledo v. Pearson Yacht Leasing Co.) In fact, anyone interested in Forfeiture Law should read the 3 Supreme Court cases I've referenced. CAFRA made some inroads in balancing the powers, but still, everything still tilts strongly toward the Gov prevailing.

Posted by: folly | Jan 18, 2015 9:50:02 AM

Folly. Very useful analysis of complicated subject.

Posted by: Supremacy Claus | Jan 18, 2015 5:02:43 PM

actually the correct response to gov't fucktard would be. "your a fucking retard.! If your still on MY property in 30 seconds you will be a DEAD gov't fucktard.

Posted by: rodsmith | Jan 19, 2015 3:06:50 AM

Rodsmith...your position does not help when you've gone to your bank and found your account balance to be ZERO.
I had multiple bank accounts...all seized...all left with a balance of Zero. Was told I was a target of a Federal Investigation...
But I was not even given a formal written complaint as to WHY my accounts were seized until almost 3 months after the seizure. In the 40 something page complaint...the vast majority of the write up was about what OTHER people had done...and nothing to do with me whatsoever.
Anger, raging, complaining...none of this will get your money back from the Government.
Instead you must do all the following steps: file a claim with the Government, under penalty of perjury. Establish "standing"...(you must appear to have a genuine interest in the property...so many claimants have been knocked out at this point)...file an "Answer"...if there's discovery...answer interrogatories...maybe do a deposition (mine lasted about six hours)...if the Gov still hasn't managed to knock you out...THEN you'll either get a hearing before a jury (strictly civil)...or before the judge alone (criminal---called the Ancillary)...
(where I gave SIX MORE hours of testimony)...who then decides if the property belongs to you...or not. It DIDN'T MATTER to the Court in my case that the bank accounts were in my name...they were forfeited to the Government ANYWAY. And believe me...you wouldn't want to go thru all this without an attorney. I have a good one, and I'm STILL stuck with an appeal.

Posted by: folly | Jan 19, 2015 10:16:38 AM

Folly:

After reading about your issues, does the government exist for you or do you exist for the government?

Posted by: albeed | Jan 19, 2015 12:59:47 PM

It's hard to say. I feel like this is the endless Quest. If the Circuit decides against me, I will try to go to the Supreme. I never would have suspected, back in 2008, that I was the type of person who could withstand a Federal indictment, a Federal trial, and a multi-year Quest to get my property back. I'd never given the law much thought...now it seems to be all I can think about!

Posted by: folly | Jan 19, 2015 5:03:30 PM

"I'd never given the law much thought...now it seems to be all I can think about!"

What a waste of money, energy and brain cells, thanks to your and our ever more useless and overgrown gubermint, and the even more uselessness of the lawyer profession in defending basic liberties! What Constitution, oh yeah, just a piece of paper. SO laws (lies), civil forfeiture (alternate funding mechanism), lack of mens rea, overabundance of malum prohibitum legislation..., who are we really and where are we going? Don't anyone bring up safety and security excuses, that is just plain BS.

Posted by: albeed | Jan 19, 2015 5:30:51 PM

i'm NOT that understanding. sorry they would be considered a criminal gang engaging in theft/. At that point any thing they have I can grab and sale would be open for a taking as they call it. they have millions of those fancy black SUV'S. those will go for good money on the black market. i'd just have to take some. anyone who get's in my way would not like the result.

Posted by: rodsmith | Jan 20, 2015 12:33:03 AM

Somewhere between the violent reaction of RS and the mainstream reaction of Folly and his attorney, is mine for now. On behalf of RS's proposal, I have often argued that immunity justifies violence in formal logic. These have the absolute truth of physical laws, with no known exceptions. If an assertion is true, then its contra-positive must be true. (If A then B is true, then if not B then not A is always true. All bats are mammals. If an animal is not a mammal then it cannot be a bat. No exceptions.) If legal liability is a substitute for violence, is true, then immunity (such as sovereign immunity) justifies violence. Formal logic as a defense for a crime has never been used, because the lawyer will always favor fictitious doctrines, such as mind reading in the form of intent. In 1275 AD, when the sole legal penalty was death, that loophole was a humane advance. Today, we know that intent does not exist in nature. All behavior is brain based, and multiply determined. So we do not care about intent anymore.

But somewhere in between lies my suggestions for current tactics, not one for future settling of scores with the criminal cult enterprise that has fully infiltrated the government is destroying our way of life, our civilization and our nation. Attack the other side, legally. Enjoin them. File one ethics charge a month against each with the multiple disciplinary authorities. Demand e-discovery on all personal and work computers, and all other electronic devices in their possessions. No defense lawyer will ever do that. The latter owes his job to the prosecution, and not to the client whose life is being destroyed. So the defendant will have to carry out these tactics pro se. Judges have a duty to help him and to be neutral arbiter. I include all police officials since they are the agents of the prosecutor. The Supremacy can attest that even a small gesture can be highly effective. Lawyers get outraged and upset by being sued and reported. They cannot believe it. Even if a total failure, it is an investment in the future, sending the message that future attacks will carry a cost. To deter.

Posted by: Supremacy Claus | Jan 20, 2015 1:47:21 AM

Asset forfeiture has been abused for decades •

Although immoral and illegal „ it is not difficult to understand why one with huge amounts of lawful cash would summarily execute an LEO were the former to feel threatened over confiscation of lawful assets •

Nemo Me Impune Lacessit

Off topic , but on January 20, 1649 , Stuart King Charles I went on trial •

Posted by: Docile Jim Brady @Bend, OR 97702-3212 | Jan 20, 2015 8:40:30 PM

A smart civil rights lawyer might do this: Count I for civil rights violations by stealing property from the pltf in violation of 4th Amd and 5th Amd. Count II Taking property under the 5th Amendment "taking clause". Force them in discovery phase to admit or deny that the so called civil forfeiture is for a public purpose. If they deny it then they cannot Take the property. If it is for a public purpose then they have to pay for what they take. They cannot fine someone by taking property without a criminal conviction supporting the fine.

The legal profession in Saint Louis is quite lame. The area is full of towns stealing from citizens and no lawyers know how to litigate in federal court.

Posted by: Liberty1st | Jan 22, 2015 11:56:37 PM

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