Monday, November 11, 2013

Robbery in Blue

Robbery in Blue


[This is a companion piece to my earlier “Policing for Profit”.  It examines another – and darker – side of what happens when the goal of policing becomes dollars, not law enforcement.]

One night in 1992 a gang of masked and armed men burst into Donald Scott’s ranch house and shot him dead as he stood at the top of the stairs leading to his bedroom.  They were there to seize his ranch.  This armed gang was a mixed task force from federal and state police agencies, including the park service, which wanted the ranch for park land but were unable to buy it.  Their search warrant stated that a helicopter overflight had seen marijuana growing on the land, but as the subsequent law suit revealed, a search of the ranch after the fatal raid found no marijuana.

A young man in Florida was arrested and convicted for selling a small amount of marijuana in a shopping center parking lot.  The pick-up he was driving was forfeited to the government … as was his parent’s house.  He lived in an apartment on the rear of their house with its on separate entrance, although he did have access to his parents’ kitchen.  He used the phone in that apartment, which was listed in his name, had arranged to have installed, and paid for, to arrange the drug sale.  The DEA claimed that this use of the phone made the whole house an instrument of the crime even though the parents had no access to it.  The court held that the parents could not be innocent owners since their son had been on probation for marijuana possession when he was fifteen.  The judge said that the earlier probation put them on notice that he had a propensity to deal drugs and that they should have taken greater steps to insure he did not do so in their house.

A Florida nurseryman flew to Houston to buy plants for his business from growers in that area.  Since many of those small growers would not accept out of state checks, he withdrew $10,000 in cash to use on the trip[1].  Federal agents met his plane when it landed in Houston and he was arrested on suspicion of drug trafficking.  His money was confiscated.

In Dallas, a young man found a duffle bag full of money in the street.  He did the right thing and turned the money in to local authorities for return to the rightful owner.  The DEA asserted a claim to the money on the grounds that no one but a drug dealer would have that much cash.  This story has a happy ending.  The DEA’s claim was rejected and the money was awarded to the honest finder. (This is one of my favorite stories.)

These three stories are among the thousands of outcomes springing from one of the most overreaching follies of Nixon’s tough-on-crime War on Drugs: civil asset forfeiture.  The FBI and BNDD (later the DEA) had long been frustrated that they could rarely convict major crime figures who only gave orders, never dirtying their own hands.  The new laws[2] allowed then to seize any property that they had probable cause to believe had been used as a criminal instrumentality, was the proceeds of a crime, or had been acquired with criminal proceeds.  The government could seize the property based only on probable cause (a very low standard of proof) and the owner would be forced to file suit and prove by a preponderance of evidence that he was an innocent owner.

These laws not only severely weakened court oversight of the process, they also cut administrative and political control of police behavior out of the picture.  The seized assets did not go into general government funds subject to budgetary control and auditing; they went directly to the police agency that had done the seizing for discretionary use.  Some police have made selfish use of these slush funds.  A prosecutor bought a luxury automobile with expensive customizing for his “official” car.  A Texas sheriff threw monthly beer and barbeque outings for his deputies. (How did local police get into the act?  First, the federal agencies shared the loot with local agencies participating in the seizure, then most states enacted “baby RICOs” of their own.

Not all of the failures of these laws are as harmless as barbeque and pimped limos or merely excessive like the forfeiture of a yacht valued at over a million dollars because one marijuana cigarette butt was found in crew quarters.  Most are downright destructive.

Ironically, the law designed to punish the leaders of organized crime acted provided them a safety net.  Major drug lords discovered they could exchange forfeiture of secret or untouchable off-shore millions for short, easily served prison terms.  Manuel Noriega, corrupt drug-running Panamanian president bought a shorter sentence in a minimum security prison than a street-corner dealer would serve in a maximum security fortress.  Informants became a way of life for the police and flourishing businessmen in their own right; they not only received direct pay for information, they also got shares in forfeited property.  Many DEA informants have received over a million dollars each.[3]

Even the patterns of law enforcement changed.  On the Interstate highways running north and south through Florida and east and west through Arkansas, cars traveling north or east were rarely stopped.  They would be carrying drugs to be sold that would have to be destroyed.  South- and west-bound cars were more attractive targets:  they were carrying the proceeds of those sales, money that the cops could confiscate.  In one Texas county, patrolmen were issued pre-printed release forms.  A motorist stopped in that county with a large amount of cash could surrender the money, sign the release acknowledging he was allowing the cop to take the money, and drive away without being arrested.

These corrupting laws need to be repealed.  At the very least, they should be amended to require the government to prove beyond a reasonable doubt its right to take to take the property and for the recovery of court costs and attorneys’ fees to the owner if the government does not prevail.  Any forfeited funds should go into the government’s general funds, subject to budgeting controls, not directly to the police.

In the meantime, if an armed bandit pulls you out of your car and has a tow-truck haul it away, or if you find yourself on the curb locked out of the house on which you have been paying the mortgage for fifteen years, just take a deep breath and smile.  You haven’t been robbed: the law says the cops have the right to grab it away from you.

[1] Federal law requires banks to report all cash transactions of $10,000 or larger.
[2] Racketeer Influenced Corrupt Organizations (RICO) and Continuing Criminal Enterprises (CCE)
[3] See my earlier “Informants: Deal with the Devil” for more on this subject.



    Federal Case Could Make It Easier For Victims To Defend Themselves Against Civil Forfeiture
    Op/Ed | 11/12/2013 @ 4:34PM

    Nick Sibilla, Contributor

    Without a search warrant, federal agents entered Robert Moser’s California home and seized $28,000 in currency. Under civil forfeiture, someone does not have to be convicted or charged with a crime to lose their property. But rather remarkably for a civil forfeiture case, Moser won his money back.

    According to Judge Larry Alan Burns, who presided over the case, police committed “serial constitutional violations… [that] were purposeful and flagrant.” Moser was not informed of his Miranda rights nor did police obtain a warrant or his consent when they first entered his house. Due to this unlawful search and seizure, that $28,000 was returned to Moser.
    ...(much longer article)