One day they just may forfeit your children
As states in particular are getting increasingly short on funds, there is a very unhealthy side effect showing up that is endangering your rights to justice. Civil forfeiture laws have become increasingly popular with state and federal law enforcement officials to put money into their own organizations where budgets are not available.
Remember Detective Sonny Crocket in the TV Series Miami Vice driving his¬† Ferrari Testarossa. A little over the top wouldn’t you think, for a city cop? Well in one of the early episodes it was kind of implied that the car came from a drug dealer’s forfeited assets. The year was 1985 and Civil Forfeiture has been steadily growing since then, but is exploding in the recent 18 months.
Before 1985 this topic was relegated to obscure passages in the musty recesses of lawbooks, and rarely invoked in practice. Today forfeiture has become the darling of law enforcement. This bonanza for law enforcement officials, however, has become a Kafkaesque nightmare for some property owners, who have found themselves caught up in a world of bizarre legal doctrine, sometimes without the assets even to defend themselves.
A New Jersey couple, for example, found their home and their two cars seized by local police based upon an allegation that they had violated New Jersey law by stealing Express Mail packages containing inexpensive clothing from the neighbors’ property. Similarly, a substantial New Jersey construction company was seized–lock, stock, and bulldozer– by state officials based upon a contractual dispute in which state officials alleged that the company had won, and performed, three municipal construction contracts upon which it was allegedly ineligible to bid. According to the reasoning of the New Jersey attorney general’s office in that case, if corporate property is used unlawfully, then all corporate property is subject to summary seizure by the government and subsequent forfeiture to the government.
Right here in Florida, a sheriff’s department adopted a forfeiture program that authorizes officials who stop and question people on the streets or highways because they look like suspected drug couriers, to seize as suspected drug money any cash in amounts over $100 that such people may be carrying, regardless of whether drugs are found.
In Texas a woman’s suitcase was seized at Hobby Airport because the drug sniffing canine had scratched her bag. Turns out she had her life savings of $39,000 in the carry on suitcase. Since 80% of the dollars in circulation have been directly exposed to heroin or cocaine, the dog’s fine nose picked up a trace. Now 7 years later the woman still has not gotten her money back and never will.
Nor has the federal government shrunk from engaging in sweeping forfeiture prosecutions. The most popular rationale–confiscating property that “facilitates” criminal conduct–has been used successfully to seize entire bank accounts based upon the deposit therein of any alleged proceeds of criminal activity.
Similarly, federal undercover agents and informants are schooled in the financial importance of arranging a drug sale on or near valuable real estate so that the entire tract may be seized under a claim that the real estate “facilitated” the alleged unlawful activity. As informants are often rewarded with a percentage of the value of the assets they deliver in this way, they become very creative and successful in their trade.
Broad forfeiture claims by state and federal officials might be better justified, and enjoy wider public support, if their sting were visited only upon the guilty, those who have intentionally committed crimes. But the oldest and most frequently used form of forfeiture–civil forfeiture– is not targeted at criminally culpable property owners.
Instead, as discussed below, civil forfeiture laws apply indiscriminately to property, regardless of the innocence of the owner, and render it subject to forfeiture if it is used unlawfully by anyone. Thus, the family home is fair game for forfeiture if a son, relative, or friend were to use it unlawfully–say, by using the telephone to arrange a drug purchase. Moreover, a growing number of states, such as Texas, Florida, and New Jersey, apply their forfeiture laws to any criminal activity, meaning that property owners must police their property against all such activity, drug- related or not. With the broadened scope and use of forfeiture laws, property owners are increasingly being deputized to serve as agents of the state in preventing wide varieties of criminal conduct. And the price for failure is steep indeed–forfeiture of one’s property to the government. With an increasing number of property owners renting their properties to “strangers” in an effort to stay afloat in a bad economy, the exposure to potentially losing the property because of a tenants action is bewildering.
Moreover, by any measure, forfeiture laws provide the government with unique litigation advantages, benefits not enjoyed by other litigants in any other area of law. They generally permit the government to seize property first, for example, and then place the burden upon the owners to come forward to prove they are entitled to have their property returned. This power of immediate possession, usually through summary government action, provides the government with tangible bargaining advantages at the outset of any title dispute between the government and a property owner. If, as the adage goes, possession is nine-tenths of the law, the government can secure this advantage before it has any obligation to prove anything.
Under federal law the government can seize property based solely upon probable cause to believe that the property was used unlawfully. This probable cause standard for seizure allows the government to dispossess property owners based only upon hearsay or innuendo–”evidence” of insufficient reliability to be admissible in a court of law. The probable cause standard relieves the government of the burden of proving anyone’s criminal guilt to obtain a forfeiture judgment over his property.
Perhaps the greatest advantage the forfeiture laws provide for law enforcement officials lies, paradoxically, in the fact that their legal justification simply defies logic.
Incredible as it sounds, civil asset forfeiture laws allow the government to seize property without charging anyone with a crime.¬† Until FEAR achieved the nation’s first major federal forfeiture law reform at the turn of the millenium, the government was allowed to keep whatever property it seized without ever having to prove a case. Seized property was presumed guilty and could be forfeited based upon mere hearsay‚Äîeven a tip supplied by an informant who stood to gain up to 25% of the forfeited assets.¬† Owners were forced into the untenable situation of trying to prove a negative‚Äîthat something never happened, even though no proof of any illegal act had been offered at trial.
Now a lot of people think that forfeiture is somehow a drug related issue but over 200 federal forfeiture laws are attached to non-drug related crimes.¬† Even a false statement on a loan application can trigger forfeiture. Physicians are subject to forfeiture of their entire assets based on a clerical errors in medicare billing. The government even tried to forfeit a farmer’s tractor for allegedly running over an endangered rat. The federal government obtained a judgment of forfeiture against the prized sailboat “Flash II,” once owned by the late John F. Kennedy, without bothering to provide notice to the principle owner of the forfeiture proceeding against the sloop.¬† It took several years of expensive litigation before the district court in Massachusetts ruled the historic sailboat had never been legally subject to forfeiture; that the government had no right to seize and then sell the sloop; and that the proceeds of that sale rightfully belong to the innocent owner.
Many innocent owners still face the untenable situation of having to prove a negative‚Äîthat their property was not involved in a crime, or that they had no knowledge of criminal activity. Most owners of seized property still lack the financial resources to even bring their cases to court. Innocent owners who are never charged with a crime still must prove their innocence in complex proceedings, where many cases are lost before even coming to trial.¬† Most forfeiture cases are never contested, in part because contesting the proceedings can cost more than the value of what’s been confiscated.¬† To defend a case, especially when you’re out of state, they’ve pretty much made it cost prohibitive.¬† Under civil asset forfeiture laws, the simple possession of cash, with no drugs or other contraband, can be considered evidence of criminal activity.
Protect yourself the best you can, because it’s not going to be easier any time soon.
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