Policing for Profit? Lawmakers, advocates raise alarm at growing gov’t power to seize property
Policing for Profit? Lawmakers, advocates raise alarm at
growing gov’t power to seize property
By Barnini ChakrabortyPublished May 09, 2014
WASHINGTON – Motel owner Russell Caswell wasn’t
expecting to find himself at the center of a national controversy when FBI
agents came knocking on his door.
They said they wanted his Tewksbury, Mass., business –
and the land it was on – because they suspected it was a hotbed for
drug-dealing and prostitution. The agents, who were working with state and
local authorities, told a disbelieving Caswell they had the right to take the
property, valued at as much as $1.5 million, through a legal process known as
civil forfeiture.
Caswell, 70, fought back, and the case turned into one of
the nation's most contentious civil forfeiture fights ever – and one that legal
experts say sheds light on a little-known practice that, when abused, is
tantamount to policing for profit.
Civil forfeiture is when police and prosecutors seize
property, cars or cash from someone they suspect of wrongdoing. It differs from
criminal forfeiture cases, where prosecutors typically must prove a person is
guilty or reach a settlement before freezing funds or selling property. In
civil forfeiture, authorities don’t have to prove guilt, file charges or obtain
a conviction before seizing private property. Critics say it is a process ripe
for abuse, and one which leaves citizens little means of fighting back.
“You breed a culture of 'take first, ask questions
later,'” Larry Salzman, an attorney with the Institute for Justice, told
FoxNews.com. “It’s thuggish behavior.”
Law enforcement officials argue that civil forfeiture
powers give them an effective tool against lawbreakers. Freezing funds and
seizing assets allow them to hit alleged criminals, frequently suspected drug
dealers, where it hurts the most – their wallets.
Alarmed civil rights groups and libertarians are rallying
against the practice. Salzman's group defended Caswell and won case in federal
court last year.
But not every target of civil forfeiture can afford the
fight.
In 1985, the U.S. Department of Justice created its Asset
Forfeiture Fund. One year later, the fund -- which holds the proceeds from
seized property and is available to be divvied out to law enforcement agencies
-- brought in $93.7 million. In 2008, the amount had ballooned to $1.6 billion.
In 2013, it reached $6.3 billion.
Across the country, many states are stepping up efforts
to curb civil forfeiture abuse.
In Tennessee, local law enforcement agencies get to keep
100 percent of all property seized through civil forfeiture – an incentive some
say can tempt police to go after property for the wrong reasons. Rep. Barrett
Rich, a former state trooper, introduced legislation last year that would
eliminate the practice in the Volunteer State.
The original version of Rich's bill would have required
authorities to obtain a warrant before seizing property. Forfeiture and title
transfer of property would take place only under due process of law and only if
the owner of the property had been prosecuted and convicted. Rich's bill
underwent amendments that, in the end, amounted to more modest reforms to state
law.
“We shouldn’t completely get rid of civil forfeiture,”
Rich told FoxNews.com. “It’s a valuable tool for law enforcement, but it is
also ripe for abuse.”
In other states, the fight for reform has been even
harder.
In March, the Georgia Sheriff’s Association successfully
killed a bill that would have raised the burden of proof in civil cases and
mandated the forfeiture of property worth more than $5,000 be brought before a
judge rather than handled administratively.
GSA president and Putnam County Sheriff Howard Sills
argued the bill would “demoralize the law enforcement community to a point
where we will see little public benefit in enforcing the law when it comes to
drug dealers and other criminal entrepreneurs.”
His letter drew harsh criticism from many watchdog
groups.
“It is hard to believe that a Georgia law enforcement
official would argue that upholding the law is worthwhile only when it is
profitable,” Heritage Foundation bloggers Jason Snead and Andrew Kloster wrote.
“Such are the perverse incentives created by civil forfeiture laws.”
An investigation conducted by the Atlanta
Journal-Constitution looked into how funds over a five-year period were spent
in Georgia.
According to the newspaper, Fulton County District
Attorney Paul Howard spent thousands of dollars gleaned from civil forfeitures
on pricey dinners and an elaborate home security system for himself. In
November 2009, he allegedly paid $800 to rent out a movie theater. Three months
later, Howard told his employees they’d have to take 10 furlough days due to
budget constraints.
To many, like attorney Salzman, civil forfeitures
represent a dangerous area of the U.S. justice system where, by law, a person
is supposed to be presumed innocent until proven guilty and not the other way
around.
On a national level, Salzman says a loophole in the
federal law called equitable sharing allows authorities to circumvent the
paper-thin protections offered on a state level.
In Ball Harbour, Fla., police raked in more than $5
million through its participation with the Justice Department’s asset
forfeiture sharing program in 2011. The town, which is home to only 2,500
permanent residents, made most of its money through the Justice Department’s
Equitable Sharing program.
Under the federal program, state and local agencies work
in tandem with the feds and often they are allowed to keep most of what they
help seize. Property is often sold, with proceeds funneled back into local
coffers. They money can go toward anything from new equipment to raises and
other perks from the same officials who carried out the bust.
It’s the lopsided power of the law that many Americans
who are targeted can’t afford to fight, Salzman says.
Salzman, who took on the Caswell case pro bono, said law
enforcement officials targeted his client’s property out of greed.
The basic accusation they used to seize his motel was
that Caswell could have done more to police what was happening in his own
motel. That was news to Caswell, who says over the years he had comp’d the cops
free rooms and space so they could set up stings and bust drug deals going
down.
“I’ve found, which is kind of hard to believe, but I’m
responsible for the action of people I don’t even know, I’ve never even met,
and for the most part I have no control over them,” Caswell said in
court. “And I have to rent them a room unless I have a real good reason
not to or I get accused of discrimination and that kind of thing.”
“And when they do something wrong, the government wants
to steal my property for the actions of those people, which to me makes
absolutely no sense,” he added. “It’s more like we’re in Russia or Venezuela or
something.”
After a four-day trial, on Jan. 24, 2013, a federal judge
in Boston dismissed the forfeiture action against the motel, ruling that the
government engaged in “gross exaggeration” of the evidence and did not have
authority to seize the property.
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