By John W. Whitehead
“Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property. Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent.”—“ Policing for Profit: The Abuse of Civil Asset Forfeiture,” Institute for Justice
In jolly old England, Robin Hood stole from the rich to give to the poor.
In modern-day America, greedy government goons steal from the innocent to give to the corrupt under court- and legislature-sanctioned schemes called civil asset forfeiture. In fact, according to The Washington Post, “law enforcement took more stuff from people than burglars did.”
This is how the American police state continues to get rich: by stealing from the citizenry.
Here’s how the whole ugly business works in a nutshell.
First, government agents (usually the police) use a broad array of tactics to profile, identify, target and arrange to encounter (in a traffic stop, on a train, in an airport, in public, or on private property) those individuals who might be traveling with a significant amount of cash or possess property of value. Second, these government agents—empowered by the courts and the legislatures—seize private property (cash, jewelry, cars, homes and other valuables) they “suspect” may be connected to criminal activity.
Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, without any charges being levied against the property owner, or any real due process afforded the unlucky victim, the property is forfeited to the government, which often divvies it up with the local police who helped with the initial seizure.
It’s a new, twisted form of guilt by association.
Only it’s not the citizenry being accused of wrongdoing, just their money.
What this adds up to is a paradigm in which Americans no longer have to be guilty to be stripped of their property, rights and liberties. All you have to be is in possession of something the government wants.
Motorists have been particularly vulnerable to this modern-day form of highway robbery.
For instance, police stole $201,000 in cash from Lisa Leonard because the money—which Leonard planned to use to buy a house for her son—was being transported on a public highway also used by drug traffickers. Despite the fact that Leonard was innocent of wrongdoing, the U.S. Supreme Court upheld the theft on a technicality.
Police stole $50,000 in cash from Amanee Busbee—which she planned to use to complete the purchase of a restaurant—and threatened to hand her child over to CPS if she resisted. She’s one of the few to win most of her money back in court.
Police stole $22,000 in cash from Jerome Chennault—which he planned to use as the down payment on a home—simply because a drug dog had alerted police to its presence in his car. After challenging the seizure in court, Chennault eventually succeeded in having most of his money returned, although the state refused to compensate him for his legal and travel expenses.
Police stole $8,500 in cash and jewelry from Roderick Daniels—which he planned to use to purchase a new car—and threatened him with jail and money-laundering charges if he didn’t sign a waiver forfeiting his property.
Police stole $6,000 in cash from Jennifer Boatright and Ron Henderson and threatened to turn their young children over to Child Protective Services if they resisted.
Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing.
As the Huffington Post explains, these police forfeiture operations have become little more than criminal shakedowns:
Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.
Unsurprisingly, these asset forfeiture scams have become so profitable for the government that they have expanded their reach beyond the nation’s highways.
According to USA Today, the U.S. Department of Justice received $2.01 billion in forfeited items in 2013, and since 2008 local and state law enforcement nationwide has raked in some $3 billion in forfeitures through the federal “equitable sharing” program.
So now it’s not just drivers who have to worry about getting the shakedown.
Any American unwise enough to travel with significant amounts of cash is fair game for the government pickpockets.
In fact, the Drug Enforcement Administration (DEA) has been colluding with the Transportation Security Administration (TSA) and local police departments to seize a small fortune in cash from American travelers using the very tools—scanners, spies and surveillance devices—they claimed were necessary to catch terrorists.
Mind you, TSA agents already have a reputation for stealing from travelers, but clearly the government is not concerned about protecting the citizenry from its own wolfish tendencies.
No, the government isn’t looking to catch criminals. It’s just out for your cold, hard cash.
As USA Today reports, although DEA agents have seized more than $203 million in cash in airports alone since 2006, they almost never make arrests or build criminal cases in connection to the seized cash.
For instance, DEA agents at the Cincinnati/Northern Kentucky International Airport stole $11,000 in cash from college student Charles Clarke—his entire life savings, in fact—simply because they claimed his checked suitcase smelled like marijuana. Apart from the sniff test, no drugs or evidence of criminal activity were found.
Christelle Tillerson was waiting to board a flight from Detroit to Chicago when DEA agents stole $25,000 in cash from her suitcase, money she planned to use to buy a truck. Tillerson was never arrested or charged
Joseph Rivers was traveling on an Amtrak train from Michigan to Los Angeles when police stole $16,000 in cash in a bank envelope—money the 22-year-old had saved up to produce a music when he arrived in Hollywood—based solely on their groundless suspicions that the money could have been associated with drugs.
How does the government know which travelers to target?
Through surveillance of Americans’ domestic travel records, by profiling train and airport passengers, and by relying on a “network of travel-industry informants that extends from ticket counters to back offices.” In one instance, the DEA actually promised to give a TSA security screener a reward for identifying luggage with large sums of cash: the more cash found, the bigger the reward.
Starting to notice a pattern?
First, the government claims it needs more powers and more weapons in order to fight crime and terrorism: the power to spy on Americans’ communications and travel; the ability to carry out virtual and actual strip searches of Americans’ luggage, persons and property; the authority to stop and interrogate travelers for any reason in the name of national security.
Then, when government agents have been given enough powers and weapons to transform them into mini-tyrants, they’re unleashed on an unsuspecting citizenry with few resources to be able to defend themselves or protect their property.
So much for those long-cherished ideals about the assumption of innocence and due process.
For example, the federal government attempted to confiscate Russell Caswell’s family-owned Tewksbury, Massachusetts, motel, insisting that because a small percentage of the motel’s guests had been arrested for drug crimes—15 out of 200,000 visitors in a 14-year span—the motel was a dangerous property. As Reason reports:
This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.
Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate.
Gerald and Royetta Ostipow had their Michigan farm and property seized, including a classic muscle car, and then sold by the local sheriff’s office. As USA Today reports:
The Ostipows were required to provide a $150,000 cash bond before they could begin the legal proceedings to contest the forfeiture and get their property back. But they couldn’t afford to. An appeals court later overturned the Ostipow’s hefty bond requirement… But the ruling didn’t stop the nightmare for the couple who were never charged with a crime. They still had to win a court case seeking the return of hundreds of thousands of dollars’ worth of property taken from the Ostipow’s rural Michigan home, including a cherished classic car. Eventually, an appeals court found that the property was wrongly forfeited. But it was too later to recover the car. With the odometer mysteriously bearing an additional 56,000 miles, police had already sold the car and spent the proceeds.
Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits.
Under a federal equitable sharing program, police turn asset forfeiture cases over to federal agents who process seizures and then return 80% of the proceeds to the police. Michigan police actually get to keep up to 100% of forfeited property.
This is what has become known as “policing for profit.”
According to USA Today, “Anecdotal evidence suggests that allowing departments to keep forfeiture proceeds may tempt them to use the funds unwisely. For example, consider a 2015 scandal in Romulus, Michigan, where police officers used funds forfeited from illicit drug and prostitution stings to pay for … illicit drugs and prostitutes.”
Police agencies have also used their ill-gotten gains “to buy guns, armored cars and electronic surveillance gear,” reports The Washington Post. “They have also spent money on luxury vehicles, travel and a clown named Sparkles.”
So what’s to be done?
As I make clear in my book Battlefield America: The War on the American People, we are now ruled by a government so consumed with squeezing every last penny out of the population as to be completely unconcerned if essential freedoms are trampled in the process.
Our freedoms aren’t just being trampled, however.
They’re being eviscerated.
At every turn, “we the people” are getting swindled, cheated, conned, robbed, raided, pickpocketed, mugged, deceived, defrauded, double-crossed and fleeced by governmental and corporate shareholders of the American police state out to make a profit at taxpayer expense.
President Trump has made it clear his loyalties lie with the police, Attorney General Jeff Sessions has previously declared his love for civil asset forfeiture, the Supreme Court keeps marching in lockstep with the police state, and the police unions don’t want their gravy train to go away, so there’s not much hope for federal reform anytime soon.
As always, change will have to begin locally and move upwards.
Some state legislatures (Florida, Michigan, Nebraska, New Mexico, and Ohio) are beginning to push back against these clearly unconstitutional asset forfeiture schemes. As the National Review reports, “New Mexico now requires a criminal conviction before law enforcement can seize property, while police in Florida must prove “beyond reasonable doubt” that property is linked to a crime before it’s seized.”
More than legislative change, however, what we need is a change of mindset on the part of the citizenry. We need to stop acting like victims and start acting like citizens with rights.
Remember, long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting.
To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights: you’re nothing more than a serf or a slave.
The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty, or property, without due process of law.
Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.
Yet if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights.
Enough is enough.
This commentary is also
available at http://www.rutherford.org.
ABOUT JOHN WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at http://www.amazon.com. He can be contacted at firstname.lastname@example.org. Click here to read more of John Whitehead’s commentaries.
PUBLICATION GUIDELINES AND REPRINT PERMISSION
John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact email@example.com to obtain reprint permission. Click here to download a print quality image of John W. Whitehead.